Guo Huang v. Eric Holder, Jr.

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Guo Huang v. Eric Holder, Jr.

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Case: 09-60707

Document: 00511216032

Page: 1

Date Filed: 08/26/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-60707 S u m m a r y Calendar August 26, 2010 Lyle W. Cayce Clerk

G U O YUE HUANG, P e titio n e r v. E R I C H. HOLDER, JR., U.S. ATTORNEY GENERAL, R espon dent

P e tit io n for Review of an Order of the B o a r d of Immigration Appeals B I A No. A073 535 458

B e fo r e GARWOOD, DENNIS and ELROD, Circuit Judges. P E R CURIAM:* G u o Yue Huang petitions for review of an order of the Board of I m m ig r a t io n Appeals (BIA) affirming the decision of the immigration judge (IJ) denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). We review an immigration court's rulings o f law de novo and its findings of fact to determine if they are supported by s u b s t a n t ia l evidence in the record. Zhu v. Gonzales, 493 F.3d 588, 594 (5th Cir. 2 0 0 7 ). The substantial evidence standard of review requires that we "defer to
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
*

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Date Filed: 08/26/2010

t h e BIA's factual findings unless the evidence is so compelling that no r e a s o n a b le fact finder could fail to find otherwise." Mikhael v. INS, 115 F.3d 2 9 9 , 304 (5th Cir. 1997). H u a n g argues that the BIA erred in its determination that he did not d e m o n s t r a t e past persecution on account of his political opinion in connection w it h his arrest following his participation in a some ten to twenty person 1994 e v e n t commemorating the Tianenmen Square protest. Due to his participation in the event, Huang was questioned and held in handcuffs for two hours, and a u t h o r it ie s later came to his home seeking to arrest him. Without more, this is in s u ffic ie n t to demonstrate past persecution. See Abdel-Masieh v. INS, 73 F.3d 5 7 9 , 584 (5th Cir. 1996). Because Huang has not presented evidence so

c o m p e llin g that no reasonable factfinder could fail to find otherwise, we will not d is t u r b the BIA's finding regarding past persecution. See Mikhael, 115 F.3d at 304. H u a n g also contends that the BIA erred in its determination that he had n o t established a well-founded fear of future persecution based on the birth of h is two children in the United States, in violation of the family planning laws of t h e People's Republic of China (PRC). He argues that the IJ and the BIA erred b y relying solely on written documents regarding country conditions in the PRC a n d not considering the evidence that supported his claim. Huang also asserts t h a t the IJ and the BIA improperly speculated as to the validity of a written n o tific a t io n from the village family planning office. The BIA is not required

t o "address evidentiary minutiae or write any lengthy exegesis, [but] its decision m u s t reflect meaningful consideration of the relevant substantial evidence s u p p o r t in g the alien's claims." Abdel-Masieh, 73 F.3d at 585. The record reflects t h a t the BIA took into account the fine imposed by the village birth control p la n n in g authority but determined that this financial sanction did not rise to the le v e l of persecution. We have stated that the harm or suffering needed to c o n s t it u t e persecution "need not be physical, but may take other forms, such as 2

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t h e deliberate imposition of severe economic disadvantage or the deprivation of lib e r t y , food, housing, employment or other essentials of life." Abdel-Masieh, 73 F .3 d at 583. Huang has not shown that the fine meets the standard to establish p e r s e c u t io n . See id. T h e record also reflects that the BIA took into account the written n o tific a t io n to Huang's mother from the birth planning committee in Huang's v illa g e to the effect that Huang was required to report for sterilization. The BIA, h o w e v e r , gave that unsigned document "minimal weight" because it had not b e e n authenticated and because it had been obtained for the purpose of lit ig a t io n . In reviewing for substantial evidence, "[our] task is not to reweigh the e v id e n c e but only to determine whether there is such relevant evidence that a r e a s o n a b le mind might accept as adequate to support a conclusion." Gibson v. F e d e r a l Trade Comm'n, 682 F.2d 554, 571 (5th Cir. 1982) (internal quotations a n d citations omitted); see Sidabutar v. Gonzales, 503 F.3d 1116, 1125 (10th Cir. 2 0 0 7 ). T h e BIA noted that in In re J-W-S-, 24 I&N Dec. 185 (BIA 2007), it had c o n s id e r e d many of the same documents submitted by Huang and had rejected a claim similar to Huang's claim. In J-W-S-, the BIA observed that "central g o v e r n m e n t policy prohibits physical coercion to compel persons to submit to fa m ily planning enforcement." Id. at 193. Discussing the family planning r e g im e in Fujian Province, which is at issue here, the BIA noted that e n fo r c e m e n t efforts had been described as "lax" or "uneven." Id. (quotation m a r k s omitted). The BIA determined in J-W-S that "[a]t most, the evidence c o n t a in e d in the record of proceedings suggests that the applicant and his wife m a y face `sanctions and penalties' upon returning to China because of the births o f their United States citizen children." Id. at 194. The BIA concluded that " [t ]h e evidence . . . fails to establish that any sanctions imposed on parents of fo r e ig n -b o r n children would rise to the level of persecution." Id.

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Date Filed: 08/26/2010

O u r review shows that similar evidence is within the record in this matter. A c c o r d in g ly , we conclude that the BIA's determination that Huang failed to e s t a b lis h an entitlement to asylum is supported by substantial evidence. See M ik h a e l, 115 F.3d at 304; see also Huang v. U.S. INS, 421 F.3d 125, 129 (2d Cir. 2 0 0 5 ) (upholding denial of asylum and withholding based in part on the d e t e r m in a t io n that "foreign-born children, and that couples returning to China w it h more children than they would have been permitted at home are `at worst, g iv e n modest fines.'"). Because Huang failed to meet the standard for asylum, h e also does not meet the more stringent standard that is required for w it h h o ld in g of removal. See Efe v. Ashcroft, 293 F.3d 899, 906 (5th Cir. 2002). Huang has waived his claim for relief under the Convention Against Torture by fa ilin g to brief it. See Rodriguez v. INS, 9 F.3d 408, 414 n.15 (5th Cir. 1993). H u a n g also contends that his due process rights were violated because the I J was not a neutral fact finder. Although the absence of a neutral arbiter can b e the basis for a due process claim, Wang v. Holder, 569 F.3d 531, 540 (5th Cir. 2 0 0 9 ), Huang has not demonstrated such a violation. Our review shows that the I J frequently interjected with questions of Huang, but she did not prevent H u a n g from presenting his case. No evident bias or partiality is reflected. H u a n g complains about the IJ's questioning and her remarks, but he has not p r o v id e d record citations to (or quoted or otherwise specifically described) any s p e c ific instances in which the IJ allegedly showed bias or partiality, and he has n o t indicated that his counsel objected to any of the IJ's questioning. "It is c o m m o n p la c e in bench trials for judges to ask questions, and we will not t r a n s m u t e such a commonplace occurrence into a due process violation without c o n s id e r a b ly more than [Huang] has demonstrated here." Id. at 541. H u a n g 's petition for review is DENIED.

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