09-0526-ag
    Huang v. Holder
                                                                                  BIA
                                                                             Nelson, IJ
                                                                          A095 473 972
                                                                          A095 473 973
                                                                          A905 473 974
                       UNITED STATES COURT OF APPEALS
                           FOR THE SECOND CIRCUIT

                               SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Daniel Patrick Moynihan
    United States Courthouse, 500 Pearl Street, in the City of
    New York, on the 25th day of April, two thousand twelve.

    PRESENT:
             JON O. NEWMAN,
             ROSEMARY S. POOLER,
             DENNY CHIN,
                  Circuit Judges.
    _______________________________________

    JIAN YI HUANG, JIN YAN YE, a.k.a.
    YI GIN YONG, a.k.a. JIN YING, ELIS
    HUANG, a.k.a. ELIS WONG,
             Petitioners,

                      v.                                   09-0526-ag
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondents.
    ______________________________________

    FOR PETITIONERS:              Henry Zhang, New York, New York.

    FOR RESPONDENT:               Tony West, Assistant Attorney
                                  General; Francis W. Fraser, Senior
                                  Litigation Counsel; Susan Houser,
                        Senior Litigation Counsel, Office of
                        Immigration Litigation, Civil
                        Division, United States Department
                        of Justice, Washington, D.C.

    UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED, in part, and GRANTED, in part.

    Petitioners Jian Yi Huang and Jin Yan Ye, husband and

wife and natives and citizens of China, and Petitioner Elis

Huang, their minor child and a native and citizen of Italy,

seek review of a December 11, 2008, order of the BIA

affirming the August 4, 2006, decision of Immigration Judge

(“IJ”) Barbara A. Nelson denying their application for

asylum, withholding of removal, and relief under the

Convention Against Torture (“CAT”).   In re Jian Yi Huang,

Jin Yan Ye, Elis Huang, Nos. A095 473 972, A095 473 973,

A095 473 974 (B.I.A. Dec. 11, 2008), aff’g Nos. A095 473

972, A095 473 973, A095 473 974 (Immig. Ct. N.Y. City Aug.

4, 2006).   We assume the parties’ familiarity with the

underlying facts and procedural history in this case.

    Under the circumstances of this case, we have reviewed

both the IJ’s decision and the BIA’s decision.   See Yan Chen

v. Gonzales, 

, 271 (2d Cir. 2005).   The


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applicable standards of review are well-established.     See

8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 

, 513 (2d Cir. 2009).

I.   Forced Sterilization

     Petitioners’ argument that the BIA erred in finding

that Petitioners Jian Yi Huang and Jin Yan Ye failed to

establish a well-founded fear of future persecution based on

the births of her three children in violation of China’s

family planning policy is foreclosed by this Court’s

decision in Jian Hui Shao v. Mukasey, 

 (2d Cir.

2008).   Although Petitioners are from Zhejiang Province and

the petitioners in Jian Hui Shao are from Fujian Province,

before the agency, as in their counseled brief to this

Court, Petitioners relied on country conditions evidence

either considered in Jian Hui Shao or related to Fujian

Province.   See Jian Hui Shao, 546 F.3d at 158-68.

     Petitioners argue that the BIA erred by failing to make

an explicit credibility finding before discounting testimony

and documentary evidence.   However, the BIA did not discount

any of Petitioners’ evidence or testimony in affirming the

IJ’s alternative finding that they failed to meet their

burden of proof.   Moreover, contrary to Petitioners’

assertion that the BIA held them to an “exceedingly high”

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burden of proof, there is no indication that the BIA

required them to demonstrate anything other than a well-

founded fear of persecution.    See Jian Hui Shao, 546 F.3d at

156 & n.15.

    Petitioners further argue that the agency failed to

give sufficient evidentiary weight to a letter from Jian Yi

Huang’s aunt, who was sterilized after giving birth to two

children in China.   Contrary to Petitioners’ assertion, the

agency did not err in finding that the letter was not

material because it did not detail the forced sterilizations

of a similarly situated individual–namely, a Chinese

national who gave birth to children abroad. See Jian Hui

Shao, 546 F.3d at 160-61, 170-71.

    Finally, the record would not compel a reasonable fact-

finder to conclude that Petitioners established a reasonable

possibility that they would face the imposition of penalties

amounting to economic persecution upon their return to

China.   See Matter of T-Z-, 24 I. & N. Dec. 163, 170-75 (BIA

2007); see also Guan Shan Liao v. U.S. Dep’t. of Justice,

, 70 (2d Cir. 2002); Jian Hui Shao, 546 F.3d at

161-62, 164 n.25.    Accordingly, the petition is denied, in

part, to the extent it challenges the agency’s determination


                               4
that petitioners failed to demonstrate a well-founded fear

of persecution based on their violation of China’s family

planning policy.

II. Forcible IUD Insertion

    However, the agency’s determination that Petitioner Ye

did not establish that she suffered past persecution based

on the alleged forced insertion of an intrauterine device

(“IUD”), is remanded in light of our decision in Mei Fun

Wong v. Holder, 

 (2d Cir 2011).

    To establish past persecution based on the forcible

insertion of an IUD, an asylum applicant must establish

that: (1) the IUD was inserted because of her resistance to

a family planning policy, or another protected ground,

rather than as a routine part of the population control

program; and (2) there were “aggravating circumstances.”

Xia Fan Huang v. Holder, 

, 128-30 (2d Cir. 2010)

(according Chevron deference to the BIA’s decision in Matter

of M-F-W- & L-G-, 24 I. & N. Dec. 633 (BIA 2008)).

    In Mei Fun Wong, we remanded for the agency to

articulate standards for determining whether an asylum

applicant has established aggravating circumstances and to

clarify how it determines whether the applicant was


                             5
subjected to the forcible insertion of an IUD on account of

their resistance to China’s family planning policy, or other

protected grounds.      Mei Fun Wong, 633 F.3d at 71-81.

    For the reasons discussed in Mei Fun Wong, we cannot

evaluate the BIA’s determination that Ye did not establish

that she suffered past persecution when she was subjected to

the involuntary insertion of an IUD.      See id.   Ye asserted

that she was “persecuted on account of the coercive family

p[l]anning policy” because she “was forced to wear an IUD”

which “caused cramps and bleeding and irregular menstrual

cycles.”   In support of her claim, she testified that the

Chinese government had “used force to drag [her] for IUD

insertion,” and that the Chinese government had refused to

remove the IUD after she reported the cramps and bleeding.

    Moreover, the BIA has yet to clarify whether it

“categorically concludes that nexus cannot be established by

evidence that a person who resisted a population control

policy was compelled to submit to a practice, such as IUD

insertion, routinely performed in furtherance of that

policy.”   Id. at 79.    And it has not yet addressed whether

“aggravating circumstances designed to compel submission

. . . [can] demonstrate the requisite nexus between that


                                 6
persecution and an applicant’s opposition to the state’s

population control policy.”    Id. at 80.   Thus, we remand

this case to the BIA for further proceedings in light of Mei

Fun Wong.

    For the foregoing reasons, the petition for review is

DENIED, in part, and GRANTED, in part, the order of removal

is VACATED, and the case is REMANDED to the BIA for

proceedings consistent with this decision. Petitioner’s

motion for a stay of removal is DISMISSED as moot.

                              FOR THE COURT:
                              Catherine O’Hagan Wolfe, Clerk




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