Ao & Huang v. INS ( 1997 )

[NOT FOR PUBLICATION]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,
Campbell, Senior Circuit Judge,
and Lynch, Circuit Judge.
Allan A. Samson on brief for petitioner.
Ernesto H. Molina, Jr., Office of Immigration Litigation,
Civil Division, Department of Justice, Frank W. Hunger,
Assistant Attorney General, Civil Division, and David V.
Bernal, Senior Litigation Counsel, on brief for respondent.
December 16, 1997
Per Curiam. Petitioners Bi Song Huang and Liu Ming
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
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)
(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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