Zhenhua Huang v. Holder , 461 F. App'x 56 ( 2012 )

11-187-ag
Huang v. Holder
BIA
Chew, IJ
A088 379 306
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.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 15th day of February, two thousand twelve,
5
6 PRESENT:
7 PETER W. HALL,
8 DEBRA ANN LIVINGSTON,
9 DENNY CHIN,
10 Circuit Judges.
11 ______________________________________
12
13 ZHENHUA HUANG,
14 Petitioner,
15 11-187-ag
16 v. NAC
17
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 ______________________________________
22
23 FOR PETITIONER: Tina Howe, New York, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Linda S. Wernery, Assistant
27 Director; Lindsay B. Glauner, Trial
28 Attorney, Office of Immigration
29 Litigation, Civil Division, United
30 States Department of Justice,
31 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Zhenhua Huang, a native and citizen of the People’s
6 Republic of China, seeks review of a December 21, 2010,
7 decision of the BIA reversing the May 7, 2009, decision of
8 immigration judge (“IJ”) George T. Chew, granting his
9 application for asylum, and denying his application for
10 withholding of removal and relief under the Convention
11 Against Torture (“CAT”). In re Zhenhua Huang, No. A088 379
12 306 (B.I.A. Dec. 21, 2010), rev’g No. A088 379 306 (Immig.
13 Ct. N.Y. City May 7, 2009). We assume the parties’
14 familiarity with the underlying facts and procedural history
15 of this case.
16 Under the circumstances of this case, we review only
17 the decision of the BIA. See Yan Chen v. Gonzales, 417 F.3d
18 268, 271 (2d Cir. 2005). The applicable standards of review
19 are well-established. See 8 U.S.C. § 1252(b)(4)(B); see
20 also Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir.
21 2009). Because Huang has failed to sufficiently challenge
22 the BIA’s denial of CAT relief before this Court, we deem
2
1 any such arguments waived. See Yueqing Zhang v. Gonzales,
2 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005).
3 I. Family Planning Claim
4 Substantial evidence supports the BIA’s determination
5 that Huang failed to establish his eligibility for relief
6 based on his claim of other resistance to China’s family
7 planning policy. As Huang acknowledges, the BIA correctly
8 concluded that he was not eligible for asylum solely on the
9 basis of his wife’s forced abortion. See Shi Liang Lin v.
10 U.S. Dep’t of Justice, 494 F.3d 296, 309-310 (2d Cir. 2007).
11 Nevertheless, even though Huang was not per se eligible for
12 asylum based on his wife’s forced abortion, he could still
13 qualify for relief by demonstrating that: (1) he engaged in
14 “other resistance” to the family planning policy; and (2) he
15 suffered harm rising to the level of persecution or has a
16 well-founded fear of suffering such harm as a direct result
17 of his resistance. See id. at 313; 8 U.S.C. § 1101(a)(42);
18 Matter of J-S-, 24 I. & N. Dec. 520, 523 (A.G. 2008).
19 In this case, the BIA did not err in finding that Huang
20 failed to demonstrate that he was persecuted based on his
21 other resistance to the family planning policy because his
22 minor beating, absent aggravating factors such as detention
3
1 or resulting injuries, did not rise to the level of
2 persecution. See Beskovic v. Gonzales, 467 F.3d 223, 226
3 n.3 (2d Cir. 2006). Contrary to Huang’s argument, the BIA
4 properly considered the context of the beating in making
5 this finding. See id. Moreover, the BIA did not err in
6 relying on Huang’s hospital report to find that he did not
7 sustain injuries as a result of the beating when he did not
8 offer proof to the contrary. See Xiao Ji Chen v. U.S. Dep’t
9 of Justice, 471 F.3d 315, 342 (2d Cir. 2006) (the weight to
10 be accorded to documentary evidence lies largely within the
11 agency’s discretion).
12 The BIA also reasonably determined that Huang failed to
13 establish that his fear of being imprisoned, sterilized, and
14 fined if he returned to China was objectively reasonable
15 because his similarly situated wife had remained in China
16 without being subjected to imprisonment or abuse, and he had
17 not yet violated the family planning policy by having a
18 second child. See Melgar de Torres v. Reno, 191 F.3d 307,
19 313 (2d Cir. 1999) (finding applicant’s claim of well-
20 founded fear weakened when his mother and daughters
21 continued to live in his native country); Jian Xing Huang v.
22 INS, 421 F.3d 125, 129 (2d Cir. 2005) (per curiam) (“In the
23 absence of solid support in the record for [an applicant’s]
4
1 assertion that he will be [persecuted], his fear is
2 speculative at best.”). Huang also failed to provide proof
3 that any fine imposed would amount to economic persecution.
4 See Guan Shan Liao v. U.S. Dep’t of Justice, 293 F.3d 61, 70
5 (2d Cir. 2002). Substantial evidence therefore supports the
6 BIA’s determination that Huang failed to demonstrate past
7 persecution or a well-founded fear of persecution based on
8 his other resistance to China’s family planning policy. See
9 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng, 562 F.3d at 513.
10 II. Political Opinion Claim
11 Huang argues that he demonstrated eligibility for
12 asylum and withholding of removal based on his opposition to
13 a corrupt village leader. Asylum eligibility requires that
14 the persecution an applicant suffered or fears be on account
15 of his race, religion, nationality, political opinion, or
16 particular social group. 8 U.S.C. § 1101(a)(42). Although
17 retaliation for opposition to government corruption may
18 constitute persecution on account of a political opinion, a
19 persecutor’s suppression of an individual’s challenge to
20 isolated, aberrational acts of greed will not. Yueqing
21 Zhang, 426 F.3d at 548. Here, Huang testified that the town
22 government ordered the corrupt village leader to return the
5
1 extorted monies to his employer and apologize. Because the
2 village leader committed extortion without permission or
3 acquiescence by the government, the BIA reasonably found
4 that Huang’s opposition to the leader’s practices did not
5 constitute a political opinion. See id.6 The BIA also reasonably found speculative that the
7 village leader would retaliate against Huang based on a
8 protected ground, and, consequently, that Huang did not
9 establish a well-founded fear of future persecution. Jian
10 Xing Huang , 421 F.3d at 129. Accordingly, substantial
11 evidence supports the BIA’s determination that Huang did not
12 establish eligibility for asylum or withholding of removal
13 on account of his political opinion. See 8 U.S.C.
14 § 1252(b)(4)(B); Yanqin Weng, 562 F.3d at 513.
15 For the foregoing reasons, the petition for review is
16 DENIED. As we have completed our review, any stay of
17 removal that the Court previously granted in this petition
18 is VACATED, and any pending motion for a stay of removal in
19 this petition is DISMISSED as moot. Any pending request for
20 oral argument in this petition is DENIED in accordance with
6
1 Federal Rule of Appellate Procedure 34(a)(2) and Second
2 Circuit Local Rule 34.1(b).1
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
5
6
1
We note our concern with the poor quality of the
brief filed by Huang’s counsel, Tina Howe. The brief
contained a number of substantive, grammatical, and
typographical errors, including: (1) mischaracterizing
the extent and nature of the BIA’s reliance on In re
T-Z-, 24 I. & N. Dec. 163 (B.I.A. 2007), and Beskovic v.
Gonzales, 467 F.3d 223 (2d Cir. 2006); and (2) failing to
provide citations or providing incomplete citations
(providing incorrect citation for Haitian Refugee Center
v. Smith, and not providing pincites for In re T-Z-).
Since Howe has already been warned about her deficient
briefing, see, e.g., Mei Juan Lin v. U.S. Att’y Gen., 278
F. App’x 37, 39 n.1 (2d Cir. 2008) (unpublished opinion);
Su Ying Wen v. U.S. Att’y Gen., 309 F. App’x 427, 429 n.3
(2d Cir. 2008) (unpublished opinion), we refer the
present matter to this Court’s Grievance Panel.
7