Shijie Huang v. U.S. Attorney General

330 F. App'x 871
CourtCourt of Appeals for the Eleventh Circuit
DecidedJune 2, 2009
Docket08-15800
StatusUnpublished

This text of 330 F. App'x 871 (Shijie Huang v. U.S. Attorney General) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shijie Huang v. U.S. Attorney General, 330 F. App'x 871 (11th Cir. 2009).

Opinion

PER CURIAM:

Shijie Huang, a native and citizen of China, petitions this court for review of the Board of Immigration Appeals’ (“BIA”) af-firmance of the Immigration Judge’s (“IJ”) order of removal and denial of asylum and withholding of removal. Huang’s claim involves the “other resistance” prong of 8 U.S.C. § 1101(a)(42), which addresses persecution based on opposition to coercive birth control policies. After a thorough review, we conclude that the record does not compel the conclusion that Huang suffered past persecution. Accordingly, we deny the petition for review.

Huang entered the United States on November 8, 2005 without having been admitted or paroled and was charged with removability under 8 U.S.C. § 1227(a)(6)(A)(i). In 2006, Huang applied for asylum and withholding of removal, alleging that he had been persecuted due to his resistance and opposition to China’s coercive family planning policies. 1

At his removal hearing, Huang testified as follows: Huang and his fiancée became engaged in 2005, although they were not permitted to marry under China’s policies because Huang was underage. When Huang’s fiancée became pregnant, they decided to go into hiding to avoid the twice-monthly government home inspections until the baby was born. In Febru7 ary 2005, Huang and his fiancée moved to Huang’s parents’ home in the Fujian Province. Despite the move, Huang was concerned about his fíaneée’s safety and decided that she should stay with Huang’s aunt. Nevertheless, on May 17, a family planning official and the police came to Huang’s parents’ home looking for Huang’s fiancée. The authorities demanded that Huang disclose his fiancée’s location. When he refused, the authorities took Huang to the family planning office, where he was handcuffed, interrogated, and beaten everywhere except his head. Huang was detained for five days, during which he expressed his disagreement with the family planning restrictions. After Huang’s parents visited him in detention, Huang’s fiancée agreed to turn herself in to authorities, who forced her to undergo an abortion. After Huang paid a fine, he was released on February 22 and he did not experience any other difficulties with authorities. In September 2005, Huang left China and came to the United States. His fiancée remained in China, but Huang did not want to return because he feared he would be jailed and fined due to his illegal departure. He further explained that he had opposed China’s policies as a teenager when he participated in anti-policy parades, and continued to fear China’s coercive birth control policies, as families were only allowed to have one child and he could be sterilized. He acknowledged, however, that his mother had given birth to two children.

In support of his asylum application, Huang submitted the following documents: (1) the 2007 State Department Country Profile; (2) the 2006 State Department Country Report; (3) a letter from his fian-cée; (4) a letter from his mother; (5) a copy of China’s family planning policy; (6) Congressional testimony and hearings, including testimony from Dr. Aird, an expert in Chinese family planning policies; and (7) various articles about China’s policies.

*873 According to the Country Profile and Country Report, China had strict birth control laws. The extent of adherence to the policy varied within the country. In the Fujian Province, authorities used “remedial measures” to deal with violations. Although the government’s policy discouraged forced abortions and sterilizations, there was some evidence these coercive techniques continued.

In her letter on behalf of Huang’s application, Huang’s fiancée confirmed that she had been forced to undergo an abortion. Although the letter noted Huang’s detention, it did not mention the alleged beating. In her letter, Huang’s mother wrote that she had been forced to undergo sterilization after she violated the family planning restrictions. She confirmed Huang had been detained, but did not mention the alleged beating, and she indicated that she had been unable to visit Huang in detention.

The IJ denied relief, concluding that Huang did not suffer past persecution on account of his resistance to China’s family planning policies under INA § 1101(a)(42). The IJ noted some discrepancies between the testimony and the evidence, but did not make an explicit adverse credibility finding. The IJ found that there was no evidence Huang suffered any harm after his participation as a teenager in the anti-policy parades, and Huang experienced no mistreatment following his release from detention. The IJ further concluded there was no evidence Huang would face future harm if returned to China.

Huang appealed to the BIA, arguing that he established a claim under the “other resistance” prong because he expressed his disagreement with the birth control policies and was beaten as a result. He further asserted that he should have been considered eligible for relief based on his fíancée’s forced abortion. Because he established past persecution on these grounds, Huang argued, he was entitled to the presumption of a well-founded fear of future persecution.

The BIA presumed Huang was credible, affirmed the IJ’s decision, and rejected Huang’s claim that he was entitled to relief based on his fianeée’s forced abortion. Considering the “other resistance” claim, the BIA concluded that Huang failed to establish past persecution, as his claim was vague and Huang had suffered no harm after his release from detention. The BIA further found that there was no well-founded fear of future persecution. Because the asylum claim failed, the BIA also denied the claim for withholding of removal. This petition for review followed.

In his petition, Huang argues that the BIA erred because he established eligibility for relief from removal based on his fiancée’s forced abortion and his own resistance to China’s coercive birth control policies.

Where, as here, the BIA affirms the IJ’s decision, but issues a separate opinion, we review the BIA’s opinion “except to the extent that [the BIA] expressly adopts the IJ’s opinion.” Reyes-Sanchez v. U.S. Att’y Gen., 369 F.3d 1239, 1242 (11th Cir.2004). We review legal determinations de novo and factual determinations under the “substantial evidence test.” See D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 817 (11th Cir.2004); Al Najjar v. Ashcroft, 257 F.3d 1262, 1283-84 (11th Cir.2001). Under this highly deferential test, we “must affirm the BIA’s decision if it is supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Al Najjar, 257 F.3d at 1283-84 (quotation omitted). We review the record evidence in the light most favorable to the agency’s decision and may not overturn findings of fact unless the record compels it. Forgue v. U.S. Att’y Gen., 401 F.3d *874 1282, 1286-87 (11th Cir.2005) (emphasis added).

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330 F. App'x 871, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shijie-huang-v-us-attorney-general-ca11-2009.