Huang v. Mukasey

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 08a0166p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
Petitioner, -
FANG HUANG,
-
-
-
No. 07-3127
v.
,
>
MICHAEL B. MUKASEY, Attorney General, -
Respondent. -
N
On Petition for Review of an Order
of the Board of Immigration Appeals.
No. A45 897 793.
Submitted: April 24, 2008
Decided and Filed: April 25, 2008
Before: MOORE and McKEAGUE, Circuit Judges; SCHWARZER, District Judge.*
_________________
COUNSEL
ON BRIEF: Theodore N. Cox, LAW OFFICES, New York, New York, for Petitioner. Melissa S.
Leibman, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. An Immigration Judge (“IJ”) found that Fang
Huang (“Huang”) entered a fraudulent marriage in 1996 for the purpose of securing admission to
the United States, denied Huang’s application for asylum as untimely filed, and denied her
applications for withholding of removal under the Immigration and Nationality Act (“INA”) and
under the Convention Against Torture (“CAT”). While her case was pending before the BIA, Huang
moved to remand her case to the Immigration Court and reopen the record so that she could submit
additional evidence and apply for an adjustment of status. The BIA dismissed Huang’s appeal from
the IJ’s decision and denied her motions to remand. In March 2008 while her case was pending
before this court, Huang filed with us a Motion to Remand to the Board of Immigration Appeals and
to Supplement the Record. For the reasons discussed below, we DISMISS Huang’s petition for
review insofar as it seeks review of the denial of her application for asylum. In all other respects,
*
The Honorable William W Schwarzer, United States District Judge for the Northern District of California,
sitting by designation.
1
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we DENY Huang’s petition for review and her motion to remand to the BIA and supplement the
record.
I. BACKGROUND
A. Procedural History
Huang, now a thirty-four-year-old native and citizen of China, entered the United States on
July 9, 1997, as a conditional permanent resident on the basis of her marriage to John Higgins
(“Higgins”), a United States citizen. More than a year earlier, in March 1996, when Higgins took
a two-week trip to China accompanied by Huang’s brother-in-law, Huang had married Higgins in
China.
On April 27, 1999, Huang and Higgins submitted a joint petition to remove the conditions
on residence. On November 16, 2000, Frank Ledda (“Ledda”), an adjudications officer of the
former Immigration and Naturalization Service (“INS”), interviewed Huang and Higgins in
Michigan regarding their joint petition. That same day, after questioning, Higgins submitted a sworn
statement to Ledda, stating that he was paid $4,000 to marry Huang, that he did not know that
marriage for the purpose of evading the U.S. immigration laws was illegal, that he and Huang had
never lived together or consummated the marriage, and that Huang lived in New York while he lived
in Michigan.
On November 24, 2000, the INS issued a Notice to Appear to Huang, charging her with
being subject to removal from the United States because her status as a conditional permanent
resident had terminated pursuant to INA § 237(a)(1)(D)(i), 8 U.S.C. § 1227(a)(1)(D)(i). The INS
also charged that Huang was subject to removal under INA § 237(a)(1)(G)(ii), 8 U.S.C.
§ 1227(a)(1)(G)(ii), for gaining admission to the United States on the basis of a fraudulent marriage.
On June 12, 2001, Huang and Higgins were divorced by a judgment issued in Grand Rapids,
Michigan.
On April 16, 2002, at a scheduling hearing, Huang’s attorney stated that Huang intended to
seek the removal of her conditional permanent-resident status on the basis of a good-faith marriage
but that she did not intend to seek asylum or any other relief. Nonetheless, at Huang’s merits
hearing on May 12, 2005, Huang submitted an application for asylum and for withholding of
removal pursuant to the INA and the CAT.
Huang based her application for asylum on the following claims: (1) that on October 15,
2004, she married Yifei Fong,1 a naturalized U.S. citizen, in New York; (2) that she cared for Fong’s
son, who was born in 1989; and (3) that on November 24, 2004, she and Fong had a child together
named Oscar Fong. The merits hearing on May 12, 2005 thus proceeded in two steps. First, the IJ
considered the nature of Huang’s marriage to Higgins, with the government contending that Huang
was removable from the country on the basis of fraudulently entering the marriage with Higgins and
with Huang arguing that this marriage was in good faith and that the IJ should grant her application
1
The record contains uncertainty regarding the name of Huang’s purported second husband, and for consistency
we will refer to him as “Fong.” When he testified at the May 2005 merits hearing, the transcript records him as stating
his name as “Yifei Fong” and also records the translator as spelling the name of his son born in 1989 as “F O N G, F U.”
Joint Appendix (“J.A.”) at 596-97 (Fong, Hr’g Tr. at 221-22). In her brief, however, Huang generally refers to him as
“Yi Fei Fang” or “Mr. Fang,” Pet’r Br. at 12, 24, 25, although her brief also occasionally refers to him as “Yifie Fong”
or “Mr. Fong,” Pet’r Br. at 33-35, 40; see also J.A. 216 (Brief to BIA at 4) (referring to “Yifei Fong”). Finally, in both
her application for asylum and her application to adjust status, Huang stated that his name is “Yi Fei Fang,” J.A. at 844,
852 (Asylum Application); J.A. at 1110-11 (Application to Adjust Status). Huang’s attorney also spelled the name of
her son with Fong as Oscar “F A N G.” J.A. at 411 (Hr’g Tr. at 36).
No. 07-3127 Huang v. Mukasey Page 3
for the removal of the conditions on residence on the basis of a good-faith marriage. Second, the
hearing then concerned Huang’s application for asylum and withholding of removal under the INA
and the CAT. On the issue of the nature of Huang’s marriage to Higgins, the government presented
testimony from Ledda, Higgins, and Huang. Huang’s testimony also pertained to her applications
for asylum and withholding of removal, and following her testimony, Huang’s purported new
husband Fong testified.
On June 16, 2005, the IJ issued an oral decision finding that Huang had fraudulently entered
marriage with Higgins for the purpose of circumventing the immigration laws and that she was
therefore removable. The IJ also denied Huang’s applications for asylum and withholding of
removal and ordered that she be removed from the United States. Huang timely appealed to the BIA
from the IJ’s decision.
In August 2005, Huang filed with the BIA a motion to reopen and remand based on changed
circumstances, claiming that Huang was pregnant with a second child with Fong. In her brief to the
BIA filed in July 2006, Huang also moved to remand for adjustment of status based on her marriage
to Fong in October 2004. In August 2006, and again in October 2006, Huang filed additional
materials with the BIA in support of her motions to remand, claiming that “newly discovered
evidence” indicated that Chinese nationals with children born in the United States would be treated
the same as Chinese nationals with children born in China. Pet’r Br. at 22-23.
On January 25, 2007, the BIA dismissed Huang’s appeal and denied Huang’s motions to
remand. Huang timely filed a petition for review of the BIA’s decision with this court. On
March 11, 2008, Huang filed with us a motion to remand her case to the BIA and to supplement the
record, and on March 18, 2008, Huang filed a motion with the BIA to reopen and remand her case
to the IJ.
B. The Hearing Before the Immigration Judge
At the start of the May 2005 hearing, the IJ observed that Huang’s application for asylum
and withholding of removal under the INA and the CAT lacked information and documentation in
several crucial areas. In particular, the IJ noted that, although the birth of a child in November 2004
was a predicate for her changed-circumstances claim, Huang had failed to file a birth certificate for
the child, nor was the child present at the hearing. Joint Appendix (“J.A.”). at 401 (Hr’g Tr. at 26);
see also J.A. at 319 (Oral Decision at 39).
After discussion of Huang’s application, the government presented evidence that Huang’s
marriage to Higgins was fraudulent. Ledda, the adjudications officer who interviewed Huang and
Higgins in November 2000, was the government’s first witness. Ledda testified about his
recollections of that interview, during which he became suspicious about the nature of Huang and
Higgins’s marriage because “they submitted minimal evidence in support of their petition [to remove
the conditions on her residence] and there was no[t] what I consider real convincing evidence to
place her in Michigan or to establish she had a life in Michigan.” J.A. at 426 (Ledda, Hr’g Tr. at
51). Huang had described a trip to New York to visit her sister, and when Ledda asked for the
address of Huang’s sister in New York, Higgins produced what appeared to be a business card and
began reading information from it. Ledda asked to see the card and found that the card contained
Huang’s name and what appeared to be contact information for Huang in New York. The card also
contained a social security number for Huang, and the three-digit prefix showed that it had been
issued in New York.
Ledda testified that he then separated the couple, and at that point Higgins admitted that his
prior statements about the marriage were false and stated that the marriage was a “fraud” that “had
been arranged by his brother-in-law, that he had been paid money to [go to] China and marry, they
No. 07-3127 Huang v. Mukasey Page 4
had never lived together, she had never lived in Michigan.” J.A. at 429 (Ledda, Hr’g Tr. at 54).
Ledda stated that Higgins further admitted that “the evidence they submitted, such as the bank
account was opened at the request of his brother-in-law, but only Mr. Higgins had access to that
account.” J.A. at 429-30 (Ledda, Hr’g Tr. at 54-55). Higgins gave a sworn written statement and
his answers to Ledda’s questions were memorialized in a typed statement.
Higgins testified next at the hearing. Higgins testified that he was “paid to marry” Huang
by her family, J.A. at 485 (Higgins, Hr’g Tr. at 110), that he and Huang never had sexual relations,
that he understood the situation as “a marriage for her to get a green card,” J.A. at 490 (Higgins,
Hr’g Tr. at 115), that he had few “sober moments” on his trip to China and could not definitively
remember any marriage ceremony, J.A. at 506-08 (Higgins, Hr’g Tr. at 131-33), that he was not
even sure when Huang ultimately entered the United States, having lost contact with Huang and her
family in the period following his brief two-week visit to China, and that he bought a Camaro with
money that he received from Huang’s family. Higgins also testified that he and Huang opened a
joint bank account the day before filing the joint petition to remove the conditions on residence in
April 1999. Higgins stated that he and Huang divorced in 2001.
Huang then testified that her marriage to Higgins was bona fide, that her mother is a U.S.
citizen, that her father has a green card, and that her parents live in New York and have been living
in the United States for more than ten years. Huang also stated that she has two sisters and that all
of her family has been in the United States since 1996. Huang testified that, although her entire
family was living in the United States, the benefit of moving closer to her family was a factor that
“didn’t come to my mind” when she married Higgins, a virtual stranger. J.A. at 562 (Huang, Hr’g
Tr. at 187).
In regard to her application for asylum and withholding of removal, Huang testified that she
and her current husband—Yifei Fong, whom she stated she married on October 15, 2004—had a
child born on November 24, 2004. J.A. at 546-47 (Huang, Hr’g Tr. at 171-72). Huang also testified
that she cared for a son that Fong fathered with another woman in 1989. Huang testified that her
husband, her sisters, and her parents, who have had three children, have traveled to China several
times in the recent past and had not experienced any problems in China despite having more than
one child. Huang claimed that she would be sterilized if she returned to China, but she admitted that
she did not have any evidence of a government policy to that effect. Huang testified that she did not
marry her current husband to have children, as having children was something that “never came to
my mind.” J.A. at 548-50 (Huang, Hr’g Tr. at 173-75). Huang stated that she and her current
husband Fong “would like to have one more [child]. If it’s a girl, that’s okay, but if it’s boy, maybe
we will have some more.” J.A. at 579 (Huang, Hr’g Tr. at 204).
The final witness to testify at the hearing was Fong, Huang’s purported second husband. He
stated that he had a son born in China in 1989 and that he and Huang had a son born in November
2004. J.A. at 597 (Fong, Hr’g Tr. at 222). Fong claimed that both children would be attributed to
Huang for the purpose of China’s family-planning policies, but stated that he had not brought any
evidence of such policies to the hearing. J.A. at 610, 614-15 (Fong, Hr’g Tr. at 235, 239-40). Fong
testified that he and Huang had agreed to have “[t]wo more” children, J.A. at 610-11 (Fong, Hr’g
Tr. at 235-36), and that he would not have married Huang if she had been unable to conceive a child.
J.A. at 617 (Fong, Hr’g Tr. at 242).
The IJ also considered documentary evidence, including the 2004 Department of State
Country Report on Human Rights Practices for China, as well as various articles pertaining to
China’s population-control policies. J.A. at 285-86 (Oral Decision at 5-6). Two days prior to the
May 2005 hearing, Huang submitted a 2003 affidavit by the demographer John Aird, but the IJ
declined to consider it because Huang filed it in an untimely fashion. J.A. at 286 (Oral Decision at
6).
No. 07-3127 Huang v. Mukasey Page 5
C. The IJ’s Decision
The merits hearing concluded on May 12, 2005, and the IJ rendered an oral decision on
June 16, 2005. As he had at the merits hearing, the IJ discussed several deficiencies in Huang’s
application for asylum and withholding of removal: Huang never submitted an original marriage
registration regarding her purported marriage to Fong; her asylum application listed their marriage
date as October 25, 2004, while testimony indicated that they married on October 15, 2004, and
Huang’s attorney had, in a July 2004 hearing, represented that the two were already married; Huang
had not filled out the section of her asylum application with information regarding her alleged
husband’s status; no evidence had been presented to indicate that Fong’s son born in 1989 existed
or that Huang had adopted him; and no evidence demonstrated that Huang and Fong had a child in
November 2004. J.A. at 285, 288, 302-07, 319 (Oral Decision at 5, 8, 22-27, 39); J.A. at 387 (July
20, 2004 Hr’g Tr. at 13) (Huang’s attorney’s statement that “[s]he is married to somebody else
now”).
The IJ denied Huang’s application for asylum as untimely given the statutory one-year filing
deadline, which is subject to certain exceptions for applications filed within a reasonable time of
certain changed circumstances. J.A. at 294-96 (Oral Decision at 14-16) (citing INA § 208(a)(2)(B),
8 U.S.C. § 1158(a)(2)(B)). Further, the IJ found that Huang had failed to prove the applicability of
the changed-circumstances exception to the one-year filing requirement because she failed to prove
the existence of either alleged triggering event—her second marriage (to Fong) or the birth of a child
in November 2004. J.A. at 323 (Oral Decision at 43); see also J.A. at 304 (Oral Decision at 24)
(stating that “there is no documentary proof that this child exists”). Even assuming the existence
of those events, the IJ found that her asylum application was not filed until it was completed on the
day of the hearing in May 2005 and that the delay between the alleged triggering events in
November 2004 and the filing in May 2005 was not a reasonable period of time. J.A. at 323 (Oral
Decision at 43). Finally, the IJ denied all of her applications on their merits, finding that Huang had
failed to prove that China would consider an adopted child and/or a U.S.-born child in applying its
allegedly coercive family-planning policies. Id. The IJ also concluded that Huang and Fong had
“not demonstrated that they would have or would want anymore children with respect to this
marriage because they cannot get the story straight as to how many children they want. Plus, of
course, we already know that Huang, she says, ‘We didn’t get married to have children,’ and he
says, ‘Yes. We got married to have children.’” Id.
In regard to the alleged fraudulent marriage between Huang and Higgins, the IJ found that
the government had satisfied its burden of showing by clear and convincing evidence that Huang
fraudulently entered a marriage for the purpose of securing admission to the United States. J.A. at
290-91 (Oral Decision at 10-11). The IJ concluded that “all of the evidence taken together aptly
demonstrates beyond any doubt in the Court’s mind that the first marriage . . . was done to secure
Immigration benefits,” noting among other things “the paucity of any evidence that they have a joint
life together.” J.A. at 321 (Oral Decision at 41).
D. The BIA’s Decision
On January 25, 2007, the BIA dismissed Huang’s appeal and denied her motions to remand.
J.A. at 1-4. The BIA “adopt[ed] and affirm[ed]” the IJ’s decision that Huang’s marriage to Higgins
was not a good-faith marriage and that Huang “failed to demonstrate eligibility for removal of
conditional permanent residence on the basis of good faith marriage.” J.A. at 2-3. As to Huang’s
“application for asylum, withholding of removal, and relief under the CAT, the [IJ’s] . . . findings
of fact have not been shown to be clearly erroneous, and we are not persuaded that [the IJ] otherwise
erred in ruling that [Huang] failed to meet her burden of establishing eligibility for the relief sought.”
J.A. at 3. In particular, the BIA concluded that the IJ “correctly denied the asylum application as
untimely.” Id.
No. 07-3127 Huang v. Mukasey Page 6
The BIA also “affirm[ed the IJ’s] decision to deny withholding of removal and relief under
the CAT.” Id. The BIA stated that Huang “failed to demonstrate past persecution” because she “did
not suffer any serious harm before leaving her native China” and “[l]ikewise, [Huang] failed to
submit sufficient evidence reflecting that it is more likely than not that she would be persecuted on
account of her opposition to China’s coercive population control policies or any other protected
ground, or that she would be tortured upon return to China.” Id.
Finally, the BIA denied both of Huang’s motions to remand. As to her motion to remand to
allow her to apply for an adjustment of status based upon her marriage in October 2004 to Fong, a
U.S. citizen, the BIA cited its decision in Matter of Velarde, 23 I. & N. Dec. 253 (BIA 2002), to
support its conclusion that “the requirements with respect to evidence that is to accompany a motion
to remand have not been met in this case,” noting also that “the DHS opposes [Huang’s] motion
because she previously perpetrated marriage fraud.” J.A. at 3. Regarding Huang’s motion to
remand to reapply for asylum on the basis of a second child born in the United States, the BIA cited
its decision in Matter of C-C-, 23 I. & N. Dec. 899 (BIA 2006), in concluding that Huang “has failed
to submit sufficient evidence demonstrating that her subjective fear of harm on account of her
opposition to China’s coercive population control policies is objectively reasonable.” J.A. at 3.
E. Huang’s Motion to Remand to the BIA
On March 11, 2008, Huang filed in this court a motion to remand her case to the BIA and
to supplement the record, claiming that “the petition for review in this matter depends in large
measure upon whether or not deference is owed to the BIA decision In re J-W-S-, 24 I. & N. Dec.
185 (BIA 2007) and In re S-Y-G-, 24 I. & N. Dec. 247 (BIA 2007).” Pet’r Mot. to Remand at
unnumbered page. She argues that these decisions rely in turn on the May 2007 U.S. Department
of State Profile of Asylum Claims and Country Conditions for China (“2007 Profile”), which she
asserts contains “significant translation errors” that make the 2002 Fujian Province Family Planning
Regulation appear “less coercive than a correct translation would indicate.” Pet’r Mot. to Remand
at 2. The government filed a response opposing the motion, contending that Huang had not
exhausted her available administrative remedies. Huang filed a reply claiming that on March 18,
2008, she filed a motion with the BIA to reopen and remand her case to the IJ based on the same
alleged mistranslations. As an alternative to our remanding her case to the BIA, Huang requested
that we hold her case in abeyance pending the outcome of her motion to reopen and remand filed
with the BIA.
II. ANALYSIS
A. Huang’s Appeal of the Denial of her Application for Removal of Conditions on Residence
The first issue in Huang’s appeal concerns the nature of her marriage to Higgins and the IJ’s
decision on this issue, which the BIA “adopt[ed] and affirm[ed].” J.A. at 2-3 (BIA Decision at 1-2).
The government contended that Huang was removable from the U.S. on the basis of fraudulently
entering the marriage with Higgins, whereas Huang argued that the marriage was entered in good
faith and that the IJ should grant her application for the removal of the conditions on residence on
the basis of a good-faith marriage. The IJ found that Huang’s “marriage to Mr. Higgins was
undoubtedly fraudulent” and therefore concluded that Huang’s “claim for a good faith waiver
crumbles under its own weight.” J.A. at 297 (Oral Decision at 17).
1. Legal Standards
Under 8 U.S.C. §§ 1186a(a)(1) and (d)(2), if an alien has been granted conditional
permanent-resident status based on a marriage to a United States citizen, the alien and her spouse
must petition within a ninety-day period “before the second anniversary of the alien’s obtaining the
status” to have the conditions removed. After review of the petition and interview of the spouses,
No. 07-3127 Huang v. Mukasey Page 7
the Attorney General may make a favorable determination and then shall remove the conditional
basis of the permanent-residence status. 8 U.S.C. § 1186a(c)(3)(B). However, the conditional
permanent-resident status shall be terminated if the Attorney General determines that the marriage
“was entered into for the purpose of procuring an alien’s admission as an immigrant.” 8 U.S.C.
§ 1186a(b)(1). The alien is then entitled to request review of that adverse determination in a
proceeding to remove the alien from the U.S., and “the burden of proof shall be on the Attorney
General to establish, by a preponderance of the evidence” that the marriage was entered to procure
the alien’s admission. 8 U.S.C. § 1186a(b)(2). An alien may also seek a hardship waiver to
“remove the conditional basis of the permanent resident status” by demonstrating inter alia that “the
qualifying marriage was entered into in good faith by the alien spouse, but the qualifying marriage
has been terminated . . . and the alien was not at fault in failing to meet the requirements” for
removal of the conditional basis. 8 U.S.C. § 1186a(c)(4).
“Where the BIA adopts the IJ’s reasoning, the court reviews the IJ’s decision directly to
determine whether the decision of the BIA should be upheld on appeal.” Gilaj v. Gonzales, 408 F.3d
275, 282-83 (6th Cir. 2005) (citing Denko v. INS, 351 F.3d 717, 723 (6th Cir. 2003)).
On appeal, we review to determine whether substantial evidence supports the factual findings
underlying the IJ’s decision regarding the nature of the marriage between Huang and Higgins. See
Oropeza-Wong v. Gonzales, 406 F.3d 1135, 1147-48 (9th Cir. 2005); see also Acheampong v.
Keisler, 250 F. App’x 158, 160 (6th Cir. 2007). A reviewing “court may reverse the BIA’s
determination if the evidence ‘not only supports a contrary conclusion, but indeed compels it.’”
Gilaj, 408 F.3d at 283 (quoting Ouda v. INS, 324 F.3d 445, 451 (6th Cir. 2003)). “Under this
standard, ‘[a] factual determination by the Board that an alien’s marriage was entered for the
purpose of gaining entry into the United States is conclusive if it is supported by reasonable,
substantial, and probative evidence in the record considered as a whole.’” Acheampong, 250 F.
App’x at 160 (quoting Bazzi v. Ashcroft, 118 F. App’x 953, 956 (6th Cir. 2004)) (alteration in
original).
2. Analysis
As detailed above, the IJ found that “the overwhelming evidence beyond any doubt in the
Court’s view is that [Huang’s] marriage to Mr. Higgins was done merely to secure her lawful
permanent resident status” and that therefore Huang’s “claim for a good faith waiver crumbles under
its own weight.” J.A. at 291, 297 (Oral Decision at 11, 18). On this portion of Huang’s appeal, the
BIA simply adopted the IJ’s reasoning, J.A. at 2-3 (BIA Decision at 1-2), and we thus review the
IJ’s decision. Gilaj, 408 F.3d at 282-83. Huang’s arguments that her marriage to Higgins was in
good faith are unpersuasive and fail to satisfy the deferential standard of review that applies in this
case.
In challenging the IJ’s finding that her marriage to Higgins was not in good faith, Huang
argues that her own testimony “provided no reason to believe that she entered into her marriage to
John Higgins for the primary purpose of circumventing immigration laws,” Pet’r Br. at 28, and she
then simply asserts that the IJ should have deemed incredible Higgins’s testimony that he did view
their marriage as simply intended to procure her entry into the United States, Pet’r Br. at 30-33.
Huang then incorrectly states that the IJ erred in concluding that their marriage was fraudulent
because Higgins’s “testimony was the only basis for the finding of marriage fraud.” Pet’r Br. at 33
(emphasis added). This statement wholly ignores that significant other evidence demonstrated the
fraudulent nature of the marriage between Higgins and Huang, including testimony at the hearing
offered by Ledda, the officer who interviewed Higgins and Huang in 2000, as well as the
documentary evidence produced at that time, including Higgins’s sworn statement that the marriage
was fraudulent, the bank record of an essentially empty “joint” account, and the business card
containing contact information for Huang in New York and a New York-issued social security
No. 07-3127 Huang v. Mukasey Page 8
number for Huang. Huang’s failure to address these other significant bases for the IJ’s finding that
the marriage was fraudulent and not in good faith is fatal to her appeal.
We therefore hold that substantial evidence supported the IJ’s finding that the marriage
between Huang and Higgins was not entered into in good faith but rather “was entered into for the
purpose of procuring [Huang’s] admission as an immigrant.” 8 U.S.C. § 1186a(b)(1)(A)(I). Thus,
we DENY review of the BIA’s affirmance of the IJ’s decision to terminate Huang’s permanent-
resident status.
B. Asylum
Huang appeals the denial of her application for asylum, but the government contends that
we lack jurisdiction to review the IJ and BIA’s determination that Huang’s application for asylum
was untimely filed. We agree that we lack jurisdiction to review Huang’s asylum claim.
The INA requires that an asylum applicant “demonstrate[] by clear and convincing evidence
that the application has been filed within 1 year after the date of the alien’s arrival in the United
States.” 8 U.S.C. § 1158(a)(2)(B). This requirement is subject to exceptions in cases when the alien
“demonstrates to the satisfaction of the Attorney General either the existence of changed
circumstances which materially affect the applicant’s eligibility for asylum or extraordinary
circumstances relating to the delay in filing an application within” the one-year required period.
8 U.S.C. § 1158(a)(2)(D). Another section of § 1158 provides that “[n]o court shall have
jurisdiction to review any determination of the Attorney General” regarding whether changed or
extraordinary circumstances exist to excuse an application for asylum that is filed later than one year
after entry into the United States. 8 U.S.C. § 1158(a)(3).
In this case, the IJ explicitly denied Huang’s asylum application on the basis that it was not
timely filed and that no changed or extraordinary circumstances excused the delay. J.A. at 294-96,
322-23 (Oral Decision at 14-16, 42-43). The BIA agreed that the asylum application was untimely.
We have held that § 1158(a)(3) “bar[s] our review of asylum applications denied for
untimeliness only when the appeal seeks review of discretionary or factual questions, but not when
the appeal seeks review of constitutional claims or matters of statutory construction.” Almuhtaseb
v. Gonzales, 453 F.3d 743, 748 (6th Cir. 2006) (construing judicial-review limitation of 8 U.S.C.
§ 1158(a)(3) in light of REAL ID Act Amendment to 8 U.S.C. § 1252(a)(2)(D)). In Almuhtaseb,
we held that we lacked jurisdiction to consider an alien’s application for asylum based on changed
circumstances pertaining to violence in the West Bank because that petitioner’s “argument regarding
changed circumstances [was] ‘predominantly factual.’” Id. at 748-49 n.3 (quoting Ramadan v.
Gonzales, 427 F.3d 1218, 1222 (9th Cir. 2005)).
Here, the BIA stated that, with regard to Huang’s “application for asylum, withholding of
removal, and relief under the CAT,” “[t]he Immigration Judge’s findings of fact have not been
shown to be clearly erroneous.” J.A. at 3 (BIA Decision at 2). The IJ found that Huang had failed
to prove the existence of either her marriage to Fong or the birth of her son and that, even assuming
the existence of these events, Huang’s delay in filing her asylum application from November 2004
to May 2005 constituted an unreasonable delay. J.A. at 323 (Oral Decision at 43) (stating that “the
trigger event, the so-called marriage [to Fong] . . . has not been proven, and the subsequent two
children of the marriage which have not been proven” and that Huang “cannot prove the trigger
event, and even if she could, she cannot prove that it was done in a reasonable period of time”). The
BIA agreed with the IJ’s finding that the asylum application was not timely filed, stating that the
application “was not filed within a reasonable period of time after the birth of her child in November
2004” and that “[t]hus, the Immigration Judge correctly denied the asylum application as untimely.”
J.A. at 3 (BIA Decision at 2).
No. 07-3127 Huang v. Mukasey Page 9
Huang’s “argument regarding changed circumstances is ‘predominantly factual,’”
Almuhtaseb, 453 F.3d at 748-49 n.3 (quoting Ramadan, 427 F.3d at 1221-22), and accordingly we
hold that we lack jurisdiction to review the denial on the ground of untimeliness of Huang’s
application for asylum. Therefore we DISMISS Huang’s petition insofar as it seeks review of the
denial of asylum.
C. Withholding of Removal Under the INA and the CAT
1. Legal Standards
“We review the BIA’s decision on a request for withholding of removal under the same
standard regardless of whether the request was made pursuant to the INA or the CAT.” Almuhtaseb,
453 F.3d at 749. “To prevail on a petition for withholding of removal under the INA, or on a
petition for withholding of removal under the CAT, an alien must show that there is a ‘clear
probability’ that she would be subject to persecution, for the INA, or to torture, for the CAT, on the
basis of one of the five statutorily protected grounds were she removed from this country.”
Kouljinski v. Keisler, 505 F.3d 534, 544 (6th Cir. 2007). “This showing of ‘clear probability’
requires more than that needed to demonstrate refugee status, which requires only a “‘well-founded
fear of [future] persecution.’” Id. (quoting 8 C.F.R. § 208.13(b)). The regulations define the “clear
probability” standard as requiring that “[a]n applicant who has not suffered past persecution . . .
establish that it is more likely than not” that she would be persecuted or tortured on the basis of one
of the protected grounds upon her return. 8 C.F.R. § 1208.16(b)(2).
When the BIA does “not summarily affirm or adopt the IJ’s reasoning and provide[s] an
explanation for its decision, we review the BIA’s decision as the final agency determination.” Ilic-
Lee v. Mukasey, 507 F.3d 1044, 1047 (6th Cir. 2007); see also Cordova v. Gonzales, 245 F. App’x
508, 510 (6th Cir. 2007). In reviewing the decision of the BIA, we must treat “administrative
findings of fact [as] conclusive unless any reasonable adjudicator would be compelled to conclude
to the contrary.” 8 U.S.C. § 1252(b)(4)(B).
Finally, although the government challenged Huang’s eligibility to apply for asylum, the
government notes that “[n]otwithstanding ineligibility for asylum . . . an alien may still apply for
withholding of removal.” Resp’t Br. at 3 n.5 (citing 8 C.F.R. § 1208.13(c)(1)).
2. Analysis
The IJ and the BIA both denied Huang’s application for withholding of removal under the
INA and the CAT, but it appears that the BIA did not entirely adopt and affirm the IJ’s reasoning.
See J.A. at 3 (BIA Decision at 2) (“Inasmuch as we are in agreement with the outcome of the [IJ’s]
decision, we affirm his decision to deny withholding of removal [under the INA] and relief under
the CAT.”) (emphasis added).2 Given that the BIA provided its own explanation and did not fully
adopt and affirm the IJ’s reasoning in regard to Huang’s application for withholding of removal
under the INA and the CAT, we review the BIA’s reasoning. See Ilic-Lee, 507 F.3d at 1047;
Cordova, 245 F. App’x at 510.
2
The IJ had stated that Huang “has not proven not only the two children of this marriage, she has not proven
even assuming arguendo that they do have these two children, that the one child would be held accountable to them under
the coercive population control rules.” J.A. at 323 (Oral Decision at 43). The BIA did state that the IJ’s “findings of
facts have not been shown to be clearly erroneous” “[w]ith regard to [Huang’s] application for asylum, withholding of
removal, and relief under the CAT.” J.A. at 3 (BIA Decision at 2). Nonetheless, the BIA’s statement that it affirmed
the denial of withholding of removal under the INA and the CAT “[i]nasmuch as we are in agreement with the outcome
of the [IJ’s] decision,” id. (emphasis added), suggests that the BIA did not adopt and affirm all of the IJ’s reasoning.
No. 07-3127 Huang v. Mukasey Page 10
The BIA provided the following reasoning for its decision regarding Huang’s application for
withholding of removal under the INA and the CAT. The BIA observed that Huang “did not suffer
any serious harm before leaving her native China in July 1997” and “[t]hus, she failed to
demonstrate past persecution.” J.A. at 3 (BIA Decision at 2). The BIA then found that Huang
“failed to submit sufficient evidence reflecting that it is more likely than not that she would be
persecuted on account of her opposition to China’s coercive population control policies or any other
protected ground, or that she would be tortured upon her return to China.” Id. Further, in its
discussion rejecting Huang’s motion to remand to allow her to reapply for asylum on the basis of
the birth in 2006 of her second child with Fong, the BIA cited its decision in Matter of C-C-, 23 I.
& N. Dec. 899 (BIA 2006), to support its conclusion that Huang “failed to submit sufficient
evidence demonstrating that her subjective fear of harm on account of her opposition to China’s
coercive population control policies is objectively reasonable.” Id.
In Matter of C-C-, the BIA criticized the same affidavit of the retired demographer, Dr. John
Aird, that Huang submitted to the BIA3 with her August 2006 motion to reopen and remand. See J.A.
at 138-204 (Aird Aff. dated 1/27/05). In Matter of C-C-, the BIA noted that Aird’s affidavit “is not
based on personal knowledge,” “provides only generalized statements that Chinese citizens who
entered the United States illegally would be subject to the same punishments that apply to Chinese
couples who violate the family planning laws in China,” and lacks any “example of a woman being
sterilized because she returned to China with a child born abroad.” 23 I. & N. Dec. at 901. In
Matter of C-C-, the BIA also observed that “the latest documents on country conditions issued by
the State Department conflict with the views of Dr. Aird.” Id. at 902. The BIA additionally stated
that “American diplomats in China are unaware of ‘any cases in which returnees from the United
States were forced to undergo sterilization procedures on their return.’” Id. at 903 (quoting Bureau
of Democracy, Human Rights & Labor, U.S. Dep’t of State, China: Profile of Asylum Claims and
Country Conditions 28 (Oct. 2005)).
The finding that children born outside of China are not counted for purposes of China’s
population-control policies continues to be accepted by the BIA, as well as by other courts of
appeals. See In re J-W-S-, 24 I. & N. Dec. 185, 192 (BIA 2007) (“We therefore find that the
evidence of record does not demonstrate that the Chinese government has a national policy of
requiring forced sterilization of parents who return with a second child born outside of China.”); In
re S-Y-G-, 24 I. & N. Dec. 247, 255 (BIA 2007) (referring to evidence “indicat[ing] that ‘children
born abroad, if not registered as permanent residents of China . . . are not counted against the
number of children allowed by China’s family planning policy”) (quoting Letter from Julieta Valls
Noyes, Director, Office of Multilateral and Global Affairs, Bureau of Democracy, Human Rights
and Labor, U.S. Dep’t of State, to Randa Zagzoug, Deputy Chief Counsel, DHS-ICE (Jan. 9, 2007));
Aie Wu v. Mukasey, No. 07-3148, 2008 WL 885844, at *2 (2d Cir. Mar. 31, 2008) (referring to 2004
Dep’t of State Report “finding that there is no evidence that returnees from the United States are
being forced to undergo sterilization” and to 2007 Dep’t of State Report that “Chinese regulations
stipulate that children born overseas are not counted for purposes of administering the family
planning policy”); Song Wang v. Keisler, 505 F.3d 615, 622-23 (7th Cir. 2007) (same).
In her brief, Huang compresses into a single section all of her arguments pertaining to
asylum, withholding of removal under the INA, and withholding of removal under the CAT. Pet’r
Br. at 38-50. Nowhere in that section does she confront the IJ’s finding that she failed to prove the
3
Two days prior to her hearing in May 2005, Huang submitted a 2003 version of Aird’s affidavit but the IJ
declined to consider it because Huang filed it in an untimely fashion. J.A. at 286 (Oral Decision at 6).
No. 07-3127 Huang v. Mukasey Page 11
existence of her marriage to Fong or of the birth of a child with Fong. Id.4 But because the BIA did
not refer to the IJ’s findings on this issue and instead rested its decision on finding that Huang failed
to submit sufficient evidence showing that China’s population-control policies would be applied to
her on account of an adopted child or U.S.-born children, Huang’s failure to contest the IJ’s findings
on the existence of her marriage to and children with Fong is not fatal to her appeal. In any event,
Huang’s argument mainly relies upon the 2003 and 2005 Aird Affidavits, and she fails to
demonstrate that evidence in the record compels the conclusion that the BIA incorrectly determined
that China’s population-control policies would not be applied against Huang.
We therefore conclude that she is not entitled to withholding of removal under either the INA
or the CAT. Thus we DENY her petition for review of the BIA’s adverse decision on these grounds.
D. The BIA’s Denial of Huang’s Motion to Remand Based on Changed Circumstances
1. Standard of Review
“The denial of a motion to reopen or reconsider a removal order is reviewed for an abuse of
discretion.” Denko v. INS, 351 F.3d 717, 723 (6th Cir. 2003). “An abuse of discretion can be shown
when the IJ or Board offers no ‘rational explanation, inexplicably depart[s] from established
policies, or rest[s] on an impermissible basis such as invidious discrimination against a particular
race or group.’” Id. (quoting Balani v. INS, 669 F.2d 1157, 1161 (6th Cir. 1982)) (alterations in
original).
2. Analysis
The BIA denied Huang’s motion to remand based on the changed circumstance of her
claimed second U.S.-born child because, under the Board’s holding in Matter of C-C-, the evidence
that Huang submitted in connection with this motion, consisting in large part of the 2005 Aird
Affidavit, failed to show that Huang had an objectively reasonable fear of being subjected to China’s
coercive population-control policies on account of adopted or U.S.-born children. J.A. at 3. On
4
Huang did devote a short subsection in the previous portion of her brief, which addressed her claim that her
marriage to Higgins was in good faith, to disputing the IJ’s credibility determinations. Pet’r Br. at 33-36. In that section,
Huang pointed out that the IJ exaggerated an inconsistency in the evidence regarding Huang’s marriage to Fong: the
IJ stated that Huang’s asylum application and her testimony indicated that she married Fong on October 25, 2004,
whereas Fong testified that they married on October 15, 2004. J.A. at 303 (Oral Decision at 23); Pet’r Br. at 33-34. In
fact, Huang, like Fong, testified that they married on October 15, 2004, J.A. at 547 (Huang, Hr’g Tr. at 172); J.A. at 597
(Fong, Hr’g Tr. at 222), but her asylum application did state that the marriage occurred on October 25, 2004, J.A. at 844
(Asylum App. at 2). Further, during a hearing in July 2004, Huang’s attorney had asserted that she was married. Thus,
the IJ correctly observed inconsistencies regarding the date of the alleged marriage between Huang and Fong, but he
exaggerated their extent.
In any event, Huang attacks the IJ’s findings regarding her purported marriage to Fong and the existence of her
children with him as though the only basis for the IJ’s finding was the date discrepancy when, in fact, the IJ pointed to
numerous other reasons for harboring doubt about the existence of any children or a valid marriage to Fong. For
instance, the IJ noted the following facts: that Huang failed to submit an original marriage registration, J.A. at 303 (Oral
Decision at 23); that Huang’s asylum application failed to include Fong’s last place and date of entry into the United
States as well as his current status, J.A. at 303-04 (Oral decision at 23-24); that one page in her asylum application
claimed that Fong’s son was born in 1989 but another page later in the application stated he was born in 1987, J.A. at
304, 307 (Oral Decision at 24, 27); see also J.A. at 844, 852 (Asylum App. at 2, 10); that Huang failed to offer a birth
certificate, an alien registration number, or any documentary proof that Fong’s child exists, J.A. at 304 (Oral Decision
at 24); and that Huang failed to present a birth certificate for the alleged son of Huang and Fong born in November 2004
and that they did not bring the child to the hearing, J.A. at 319 (Oral Decision at 39).
No. 07-3127 Huang v. Mukasey Page 12
appeal, Huang incorrectly states that the IJ relied on Matter of C-C-5 and attacks the conclusion
reached in Matter of C-C- by claiming that new documents call Matter of C-C- into question. Pet’r
Br. at 38-39. Huang observes that the Second Circuit has remanded a case to the BIA based on
documents, allegedly produced by the Fujian Province Department of Family Planning, that indicate
foreign-born children would be considered as part of China’s population-control policies. Pet’r Br.
at 38-39 (citing Shou Yung Guo v. Gonzales, 463 F.3d 109 (2d Cir. 2006), and Jin Xiu Chen v. U.S.
Dep’t of Justice, 468 F.3d 109 (2d Cir. 2006)).
Huang’s reliance on these cases is misplaced. First, Huang has never maintained that Fujian
Province is her home or that she would be returned to that province,6 whereas Changle City, Fujian
Province, was the “home city” of the petitioner in Jin Xiu Chen. Jin Xiu Chen, 468 F.3d at 110.
Further, upon the Second Circuit remand’s in Shou Yung Guo, the BIA considered the most recent
evidence and concluded that “children born abroad are ‘not . . . counted’ for birth planning purposes
when the parents return to China.” In re S-Y-G-, 24 I. & N. Dec. 247, 255 (BIA 2007); see also
II.C.2 supra. Perhaps most important, however, is that the BIA, in citing Matter of C-C-,
acknowledged Huang’s submission of the Aird Affidavit and the Fujian documents and relied on
its own previously stated reasons in denying her motion to remand. We therefore hold that the BIA
did not abuse its discretion in denying Huang’s motion to remand to allow her to reapply for asylum
on the basis of the alleged birth in 2006 of her second child with Fong, and we DENY review on that
basis.
E. The BIA’s Denial of Huang’s Motion to Remand for Adjustment of Status
The final section of Huang’s brief, which amounts to slightly less than one full page of text,
argues that the BIA abused its discretion by denying her motion to remand to allow her to apply for
adjustment of status based on her marriage to Fong, a U.S. citizen. Pet’r Br. at 50-51. Even
assuming that we view this argument as properly raised, we hold that Huang clearly fails to
demonstrate that the BIA abused its discretion in denying her motion to remand for adjustment of
status.
Huang notes that under Matter of Velarde-Pacheco, 23 I. & N. Dec. 253 (BIA 2002), the
BIA may, in certain circumstances, grant a motion to reopen filed by an alien who has married a
United States citizen after the immigration authorities have commenced removal proceedings. Pet’r
Br. at 50. Velarde sets forth a multi-factor test for relief that Huang simply recites before declaring
that “[t]his case meets all Velarde factors, compelling reason to grant reopening based on bona fides
of the marriage, timely filed and not number-barred motion.” Pet’r Br. at 51.
The government counters that the BIA correctly held that several of the Velarde factors are
not satisfied in this case, including that the government does oppose the relief on an acceptable
ground (namely, that she committed marriage fraud). Resp’t Br. at 42-44; J.A. at 3 (BIA Decision).
Further, a fatal flaw to Huang’s argument is her failure to acknowledge that Velarde did not compel
relief when an alien meets the listed factors and instead decided that the issue was a discretionary
matter. Velarde, 23 I. & N. Dec. at 257 (“Immigration Judges may still deny motions to reopen . . .
in the exercise of discretion.”). Indeed, in Velarde the BIA emphasized that its decision “does not
5
In fact, it was the BIA that relied on Matter of C-C-. J.A. at 3. Huang’s mistaken claim that the IJ relied on
the case thus produces the erroneous impression that the BIA abused its discretion by failing to remand her case to the
IJ in a situation in which the IJ relied on a possibly suspect ground. The IJ could not have relied on Matter of C-C-
because the IJ’s decision predates the issuance of that opinion.
6
On her asylum application, Huang stated that she had lived in Xinxiang, a city in the province of Henan. J.A.
at 846 (Asylum App. at 4); RANDOM HOUSE UNABRIDGED DICTIONARY 2196 (2d ed. 1993); see also J.A. at 574 (Huang,
Hr’g Tr. at 199) (stating that she is from the “Hunan [sic] province”).
No. 07-3127 Huang v. Mukasey Page 13
require Immigration Judges to reopen proceedings . . . in every case in which the respondent meets
all five of the aforementioned factors.” Velarde, 23 I. & N. Dec. at 257.
In light of her previous fraudulent marriage and the government’s opposition to her motion
on that ground, Huang has not demonstrated that the BIA abused its discretion in denying her motion
to remand for adjustment of status. We DENY review of the BIA’s denial of remand on this ground.
F. Huang’s March 2008 Motion to Remand to the BIA and Supplement the Record
On March 11, 2008, Huang filed a motion in our court to remand her case to the BIA and to
supplement the record with various materials, claiming that subsequent translations of certain
Chinese government documents demonstrate that China’s family-planning policies are more
coercive than previous reports indicated and that this new information undermines the BIA’s
decision in this case. The government opposes Huang’s motion on several grounds: that Huang
failed to exhaust her available administrative remedies, that Huang failed to raise this issue in her
opening brief, and that the evidence is not in the administrative record. We deny Huang’s motion
for several reasons.
First, we observe that we lack a statutory basis for remanding her case or for supplementing
the record. The INA provides that “the court of appeals shall decide the petition only on the
administrative record on which the order of removal is based.” 8 U.S.C. § 1252(b)(4)(A). Federal
regulations establish a procedure by which to bring new evidence before the BIA. 8 C.F.R.
§ 1003.2(c). In Xiao Xing Ni v. Gonzales, 494 F.3d 260, 264-65 (2d Cir. 2007), the Second Circuit
observed that the Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009, “explicitly revoked our authority to remand to the
BIA for the taking of additional evidence.” (citing 8 U.S.C. § 1252(a)(1)).
The Second Circuit’s opinion Xiao Xing Ni supports the denial of Huang’s motion. In Xiao
Xing Ni, the Second Circuit noted that in Tian Ming Lin v. U.S. Dep’t of Justice, 473 F.3d 48 (2d Cir.
2007), another panel had expressed in dicta that courts of appeals have an “‘inherent equitable power
to remand cases to administrative agencies for further proceedings in sufficiently compelling
circumstances.’” Xiao Xing Ni, 494 F.3d at 265 (quoting Tian Ming Lin, 473 F.3d at 52). In Xiao
Xing Ni, the court considered whether any inherent equitable power to remand existed and, while
“declin[ing] to forswear categorically all inherent power to remand for additional fact-finding,” the
court “conclud[ed] that the exercise of such an inherent power is not warranted if, as here: [i] the
basis for the remand is an instruction to consider documentary evidence that was not in the record
before the BIA; and [ii] the agency regulations set forth procedures to reopen a case before the BIA
for the taking of additional evidence.” Xiao Xing Ni, 494 F.3d at 269. Reasoning that under those
circumstances, the BIA would then be able to evaluate the new evidence in the first instance, and,
if the BIA denied the motion, “a petition may be taken to this Court, and this Court can grant
relief—without calling upon extraordinary inherent powers.” Id. at 270. The circumstances that the
Second Circuit identified as rendering inappropriate the exercise of an inherent equitable power are
present in this case,7 and we adopt the Second Circuit’s analysis in Xiao Xing Ni8 and therefore we
DENY Huang’s motion to remand to the BIA and supplement the record.
7
In her Reply to the Government’s Response to her motion, Huang asserts that she has filed a motion with the
BIA to reopen the proceedings, and includes an attachment purporting to show this. Reply at 1; Attachment A to Reply.
8
We do emphasize that, similar to the Second Circuit in Xiao Xing Ni, our decision to deny Huang’s motion
to remand in these circumstances does not “forswear categorically” the existence of an inherent equitable power to
remand to the BIA in an appropriate case. See Xiao Xing Ni, 494 F.3d at 269.
No. 07-3127 Huang v. Mukasey Page 14
III. CONCLUSION
For the reasons discussed above, we DISMISS Huang’s petition for review insofar as it
seeks review of the denial of her application for asylum. In all other respects, we DENY Huang’s
petition for review and her motion to remand to the BIA and supplement the record.