Ao & Huang v. INS ( 1997 )

USCA1 Opinion

                                [NOT FOR PUBLICATION]



                           United States Court of Appeals

                                For the First Circuit

                                 ____________________



            No.  97-1546



                            BI SONG HUANG and LI MING AO,



                                     Petitioners,



                                          v.



                       IMMIGRATION AND NATURALIZATION SERVICE,



                                     Respondent.



                                 ____________________





                          PETITION FOR REVIEW OF AN ORDER OF

                           THE BOARD OF IMMIGRATION APPEALS



                                 ____________________



                                        Before



                                 Selya, Circuit Judge,
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                            Campbell, Senior Circuit Judge,
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                              and Lynch, Circuit Judge.
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                                 ____________________





                Allan A. Samson on brief for petitioner.
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                Ernesto H. Molina, Jr., Office of Immigration Litigation,
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            Civil  Division,  Department  of Justice,  Frank  W.  Hunger,

            Assistant  Attorney General,  Civil  Division, and  David  V.
_________

            Bernal, Senior Litigation Counsel, on brief for respondent.
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                                 ____________________



                                  December 16, 1997

                                 ____________________

































                      Per Curiam.  Petitioners Bi Song Huang and Liu Ming
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            Ao, a  married couple in  their twenties who are  citizens of



            the  People's Republic  of  China,  seek  review of  a  final



            deportation  order of the Board of Immigration Appeals (BIA).



            Huang and  Ao  have  conceded  excludability,  but  requested



            asylum  and withholding of deportation.  An Immigration Judge



            on  December  13,  1995 found  them  excludable  because they



            possessed neither valid visas nor travel documents and denied



            the application for  asylum and  withholding of  deportation.



            The  Board of  Immigration Appeals  on  April 8,  1997, in  a



            careful decision,  disagreed  with  the  Immigration  Judge's



            determination  that petitioners  were not credible  but found



            that Huang had not established his claim (under which Ao also



            sought protection) for asylum and withholding of deportation.



                      Under  Section  208(b)  of  the  INA,  8  U.S.C.



            1158(a),  the  Attorney   General,  in  her  discretion,   is



            authorized to  grant asylum to refugees.  Refugees are aliens



            who are unable or unwilling to return to their native country



            "because of persecution or a well-founded fear of persecution



            on  account of race,  religion, nationality, membership  in a



            particular social  group, or political opinion."   8 U.S.C.



            1101(a)(42)(A).   These two  grounds --  past persecution  or



            well  founded fear  of persecution  --  do not  apply to  all



            persecutions  or  fears,  but  only  to  those  in  the  five











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            enumerated categories.  See Tokarska  v. INS, 978 F.2d 1 (1st
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            Cir. 1992).



                      If  the determinations by  the BIA, whose decisions



            we review,  are supported  by substantial  evidence, we  must



            deny the petition.  See  INS v. Elias-Zacarias, 502 U.S. 478,
___  ___    ______________



            481 (1992).   Here, Huang  argues that he suffered  from past



            persecution when  he was beaten  and lost his job  because he



            protested  the activities of his employer, a local government



            official.  But,  as the BIA  found, the protest was  over his



            employer's illegal activities (using prison labor  to produce



            goods), his employer was most likely corrupt, and "it appears



            more  likely  that  this  corruption  is  the  basis  for the



            punishment of  applicant, not applicant's  presumed political



            beliefs."   Accordingly, the  BIA determined,  Huang had  not



            shown  a  nexus  between his  political  beliefs,  the ground



            asserted  for asylum  based  on  past  persecution,  and  the



            actions taken by his employer.



                      As to Huang's  argument that he had  a well-founded



            fear of persecution,  the BIA found that Huang  had again not



            shown a  nexus between his  fear of persecution,  which might



            well be genuine, and his  political beliefs, nor had he shown



            that the  threat of  persecution was  country-wide.   The BIA



            concluded that Huang had not  met his burden of showing "that



            a reasonable  person in  his circumstances .  . .  would fear



            persecution  on  account   of  race,  religion,  nationality,







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            membership  in  a  particular   social  group,  or  political



            opinion."  Because Huang failed to meet the lower standard of



            proof  for asylum,  he also  did  not meet  the higher  clear



            probability standard of  eligibility required for withholding



            of deportation.  See INS v.  Stevic, 467 U.S. 407, 413 (1984)
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            (alien must establish a "clear probability" of persecution to



            avoid deportation under 8 U.S.C.   1253(h)).



                      The evidence of record unquestionably supports  the



            BIA's   findings.    Congress  has  chosen  to  restrict  the



            definition of asylum.  Not all who will face hardship if they



            return   to  their   native   countries  are   eligible   for



            consideration of asylum.



                      The  decision  of  the Board  is  affirmed  and the



            petition is dismissed.



















































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