2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-2-2010

Hong Huang v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-3747

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 09-3747

___________

HONG MOU HUANG,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A094-921-901)

Immigration Judge: Eugene Pugliese

____________________________________

Submitted Under Third Circuit LAR 34.1(a)

April 22, 2010

Before: MCKEE, FUENTES and VAN ANTWERPEN, Circuit Judges

(Opinion filed: July 2, 2010)

_________

OPINION

_________

PER CURIAM

Hong Mou Huang petitions for review of a final order of the Board of Immigration

Appeals (“BIA”) affirming the Immigration Judge’s (“IJ’s”) denial of asylum,
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withholding of removal, and relief under the Convention Against Torture (“CAT”). We

will deny the petition for review. 

I.

Hong Mou Huang, a native and citizen of the People’s Republic of China, entered

the United States in 2007 and was placed in removal proceedings for being an alien

present without valid documentation. Huang applied for asylum, withholding of removal,

and CAT protection, claiming that he had been persecuted for resisting China’s family

planning policy. Huang also stated in his asylum application that he feared he would be

fined, jailed, and tortured for his illegal departure if he returned to China.

During the hearing on his application, Huang testified that his wife was forced to

have an intrauterine device implanted after the birth of their first child. She had the

device removed and the couple moved to another city, obtaining jobs at a brick factory. 

Sometime thereafter, Huang’s wife became pregnant with a second child. Meanwhile,

back in their hometown, the authorities began coming to Huang’s parents’ house in search

of his wife because she failed to report for gynecological check-ups. The authorities

eventually detained Huang’s parents in an effort to force his wife to appear. After

learning about the detention, Huang’s wife returned and gave herself up to the authorities

and a forced abortion was performed. About seven years later, Huang fled China. He did

not testify about the claim in his asylum application that he feared he would be persecuted

for illegally departing China if he were to return.
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The IJ denied relief and ordered Huang removed to China, concluding that he had

not suffered past persecution. The IJ concluded that, as a matter of law, Huang could not

maintain a claim for asylum based on his wife’s forced abortion. He further concluded 

that Huang had failed to present any evidence that he himself had been persecuted. As

for the claim regarding fear of future persecution for illegally departing China, the IJ

concluded that Huang had waived the claim by failing to testify about it.

The BIA affirmed the IJ’s decision, holding that, although Huang “may have

engaged in ‘other resistance’” to China’s coercive family planning policy, he had not

demonstrated any harm to himself rising to the level of persecution. The BIA also

rejected Huang’s claim that he would be punished for illegally leaving China. The Board

noted that the fact that a country may punish or prosecute a citizen for illegal departure

does not in general qualify that person for asylum. The Board then concluded that there is

insufficient evidence in the record to establish that any future punishment Huang claimed

might be imposed would constitute persecution. Huang filed a timely petition for review.

II.

We have jurisdiction pursuant to 8 U.S.C. § 1252 to review final orders of

removal. In this case, the BIA affirmed the decision of the IJ and discussed some of the

bases for the IJ’s decision, so we therefore review the decisions of both the IJ and BIA. 

See Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004). In doing so, we review factual

findings for substantial evidence and may not disturb them “‘unless any reasonable
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adjudicator would be compelled to conclude to the contrary.’” Sandie v. Att’y Gen., 562

F.3d 246, 251 (3d Cir. 2009) (quoting 8 U.S.C. § 1252(b)(4)(B)). We exercise plenary

review over conclusions of law, subject to the established principles of deference

accorded agency decision-making. See Sioe Tjen Wong v. Att’y Gen., 539 F.3d 225, 231

(3d Cir. 2008).

Under the Immigration and Nationality Act (“INA”), an applicant may demonstrate

eligibility for asylum by showing either past persecution or a well-founded fear of future

persecution on account of race, religion, nationality, membership in a particular social

group, or political opinion. 8 U.S.C. § 1101(a)(42)(A). The INA further states that “a

person who has been forced to abort a pregnancy or to undergo involuntary sterilization . .

. shall be deemed to have been persecuted on account of political opinion.” 8 U.S.C. 

§ 1101(a)(42)(B). We recently held, however, that there is no automatic refugee status

for spouses of individuals subjected to coercive population control policies. Lin-Zheng v.

Att’y Gen., 557 F.3d 147, 157 (3d Cir. 2009) (en banc). Thus, the IJ and the BIA

properly held that Huang was not entitled to asylum based on his wife’s abortion.

But spouses remain eligible for relief if they can establish that they personally

were persecuted for resisting a coercive family planning policy, or that they have a wellfounded fear of future persecution for that resistance. See 8 U.S.C. § 1101(a)(42). We

agree with the IJ and BIA that Huang has not made such a showing. There is no evidence

in the record that Huang himself was persecuted on account of his wife’s second
5

pregnancy. He was not arrested, detained, or physically harmed. See Ahmed v. Ashcroft,

341 F.3d 214, 217 (3d Cir. 2003) (“persecution connotes extreme behavior, including

threats to life, confinement, torture, and economic restrictions so severe that they

constitute a threat to life or freedom”). As for the detention of Huang’s parents, their

experiences cannot establish his eligibility for asylum under a statutory scheme that

extends refugee status only to the individual who has been persecuted. See Lin-Zheng,

557 F.3d at 156.

In his brief before this Court, Huang takes issue with the IJ’s conclusion that he

has neither alleged nor proven a well-founded fear of future persecution in China for his

resistance to the coercive family planning policy. He asserts that his testimony about the

detention of his parents proves that he has a well-founded fear that he also would be

detained by authorities if he returns to China. It is unclear whether Huang is asserting

that he fears he will be detained as punishment for his prior resistance to the family

planning policy, or that he will be detained if his wife becomes pregnant in the future. 

This lack of clarity is of no moment, however, because Huang never presented this claim

to the IJ or the BIA. By failing to exhaust his administrative remedies, Huang has failed

to preserve his right to judicial review of the claim. See 8 U.S.C. § 1252(d)(1);

Abdulrahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir. 2003).

Finally, Huang seeks to have his case remanded for further fact finding on his
 The government asserts that this Court lacks jurisdiction to review Huang’s claim 1

because it is unexhausted insofar as Huang failed to testify about it before the IJ. Because

the BIA elected to address and resolve the claim, we have jurisdiction to review it. See

Lin v. Att’y Gen., 543 F.3d 114, 123-24 (3d Cir. 2008).

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claimed fear of future persecution for illegally departing China. As described earlier, the 1

IJ held that Huang waived this claim for asylum by failing to testify about it. The BIA

rejected the claim on the merits because there is not “sufficient evidence in the record

indicating that any punishment that the respondent claims would be imposed would

constitute persecution (as opposed to prosecution and legitimate punishment) or torture.” 

Huang now argues that the IJ failed to carry out his duty to affirmatively develop the

record on the illegal departure claim and that this failure entitles him to further

proceedings on the claim. Although this court has recognized that an IJ has a duty to

assist an applicant in developing the record – such as advising the applicant about what

corroborating evidence will be expected and allowing the applicant an opportunity to

obtain it or explain its absence – that duty does not relieve the applicant of his ultimate

burden of proving entitlement to asylum. See 8 U.S.C. § 1158(b)(1)(B). Moreover, the

issue here is not that the IJ failed to notify Huang about the need for corroborative

evidence or prevented him from presenting evidence or explanations, see Chukwu v.

Att’y Gen., 484 F.3d 185, 192-93 (3d Cir. 2007), but rather that Huang, who was

represented by counsel, failed to support a claim he listed in his application. We thus

agree with the BIA’s conclusion that Huang failed to establish a well-founded fear of
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future persecution for illegally departing China.

Accordingly, we will deny the petition for review.