Haifeng Huang v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 22 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HAIFENG HUANG, No. 20-72451
Petitioner, Agency No. A202-170-371
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 18, 2021**
San Francisco, California
Before: M. SMITH and VANDYKE, Circuit Judges, and GORDON,*** District
Judge.
Haifeng Huang (Huang) petitions for review of the Board of Immigration
Appeals’ (BIA) order dismissing his appeal of an Immigration Judge’s (IJ) decision
*
This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision without oral
argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Andrew P. Gordon, United States District Judge for the District
of Nevada, sitting by designation.
denying his request for asylum, withholding of removal, and protection under the
Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252.
We deny the petition for review.
We review “[t]he BIA’s denial of asylum” and “determination that the
petitioner does not have an objectively reasonable fear of persecution for substantial
evidence.” Nagoulko v. INS, 333 F.3d 1012, 1015 (9th Cir. 2003); Lolong v.
Gonzales, 484 F.3d 1173, 1178 (9th Cir. 2007) (en banc). The BIA’s factual findings
are also reviewed for substantial evidence. Rayamajhi v. Whitaker, 912 F.3d 1241,
1243 (9th Cir. 2019). This deferential standard requires us to view factual findings
as “conclusive unless any reasonable adjudicator would be compelled to conclude
to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Singh v. Lynch, 802 F.3d 972,
974 (9th Cir. 2015). While “we consider only the grounds relied upon by” the BIA
for its decision, Andia v. Ashcroft, 359 F.3d 1181, 1184 (9th Cir. 2004) (per curiam),
in reviewing the BIA’s basis for its decision we must determine whether the record
evidence, “considered as a whole,” “compels” us to reverse the BIA’s decision. INS
v. Elias-Zacarias, 502 U.S. 478, 481, 481 n.1 (1992) (emphasis omitted).
“Accordingly, in order to reverse the BIA’s finding under substantial evidence
review, ‘we must find that the evidence not only supports that conclusion, but
compels it.’” Santos-Ponce v. Wilkinson, 987 F.3d 886, 890 (9th Cir. 2021) (quoting
Elias-Zacarias, 502 U.S. at 481 n.1).
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Substantial evidence supports the BIA’s conclusion that Huang failed to
demonstrate past persecution or a well-founded fear of future persecution based on
his religion and political opinion.
To demonstrate past persecution, Huang “has the burden of establishing that
(1) his treatment rises to the level of persecution; (2) the persecution was on account
of one or more protected grounds; and (3) the persecution was committed by the
government, or by forces that the government was unable or unwilling to control.”
Baghdasaryan v. Holder, 592 F.3d 1018, 1023 (9th Cir. 2010). “A petitioner who
cannot show past persecution might nevertheless be eligible for relief if he instead
shows a ‘well-founded fear of future persecution’ along with the other elements.”
Hussain v. Rosen, 985 F.3d 634, 645–46 (9th Cir. 2021) (citation omitted). To
demonstrate a well-founded fear of future persecution, the petitioner must show both
a ‘“subjectively genuine’ and ‘objectively reasonable’ fear.” Zhao v. Mukasey, 540
F.3d 1027, 1029 (9th Cir. 2008) (citation omitted). In other words, Huang must
“demonstrate a genuine fear of future persecution” and present “credible, direct, and
specific evidence of facts supporting a reasonable fear of future persecution.” Aruta
v. INS, 80 F.3d 1389, 1394 (9th Cir. 1996) (alterations and citation omitted).
Huang argues that the following events rise to the level of persecution: (1) his
two-hour detention by Chinese police in 2011 for attending a Tibetan Buddhism
house meeting; (2) a single beating by a school teacher about which Huang provided
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no details, but that did not result in medical attention; (3) his school’s surveillance
of him during his final year at school; and (4) his failure to be admitted to his
university of choice. But these events do not compel us to conclude that he suffered
past persecution. By itself, “[b]rief detention does not necessarily establish
persecution,” and while brief detention plus physical attacks may rise to the level of
persecution, Huang did not experience any physical attacks other than the single,
vaguely described incident with his teacher. Prasad v. INS, 47 F.3d 336, 339 (9th
Cir. 1995). And while our court has said that an outright “[d]enial of access to
educational opportunities available to others on account of a protected ground can
constitute persecution,” see Zhang v. Gonzales, 408 F.3d 1239, 1247 (9th Cir. 2005),
Huang only speculates that he was not admitted to his preferred university on
account of his disciplinary record. The BIA’s conclusion that Huang did not suffer
past persecution is thus supported by substantial evidence.1 See, e.g., Hoxha v.
Ashcroft, 319 F.3d 1179, 1182 (9th Cir. 2003) (concluding that harassment,
unfulfilled threats, and one beating did not compel a finding of past persecution).
Huang contends that he possesses a well-founded fear of future persecution
1
While Huang also relies on our opinion in Guo v. Sessions, 897 F.3d 1208 (9th Cir.
2018) to show past persecution, Guo is distinguishable from this case, as Huang
acknowledges in his opening brief. Huang states that he “admissibly received
somehow lesser severity of harms in the hand of Chinese authorities in comparison
to [Guo].”
4
on the basis of his religion and his political opinion because he expressed his views
through now-deleted internet posts about Tibetan Buddhism and the Chinese
government.2 But assuming Huang has a subjective fear of future persecution, the
record does not “show good reason to fear future persecution.” Nagoulko, 333 F.3d
at 1018. Substantial evidence therefore supports the BIA’s conclusion that Huang
does not qualify for asylum.3
The petition for review is DENIED.
2
Huang also argues that his well-founded fear of future persecution can be
established based on a pattern or practice of persecuting online writers in China. But
Huang did not raise this argument before the BIA. His failure to exhaust this claim
during the administrative proceedings “bars us, for lack of subject matter
jurisdiction, from reaching the merits” of this claim on appeal. Barron v. Ashcroft,
358 F.3d 674, 678 (9th Cir. 2004).
3
Because Huang did not “specifically and distinctly argue[] and raise[]” his
withholding of removal or CAT claim on appeal, those claims are waived. Castro-
Perez v. Gonzales, 409 F.3d 1069, 1072 (9th Cir. 2005) (citation omitted).
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