Huang v. Gonzales, (2nd Cir. 2007)

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06-4150-ag

Huang v. Gonzales

BIA

McManus, IJ

A79-683-167

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

R U L I N G S BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS FILED

A F T E R JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT'S LOCAL RULE 0.23 AND

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M U S T EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION: "(SUMMARY ORDER)."

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A t a stated term of the United States Court of Appeals

f o r the Second Circuit, held at the Daniel Patrick Moynihan

U n i t e d States Courthouse, 500 Pearl Street, in the City of

N e w York, on the 7 t h day of May, two thousand seven.

PRESENT:

H O N . JOSÉ A. CABRANES,

H O N . ROBERT A. KATZMANN,

H O N . BARRINGTON D. PARKER,

C i r c u i t Judges.

H O N G YAN HUANG,

Petitioner,

-v.- 06-4150-ag

NAC

A L B E R T O R. GONZALES, UNITED STATES

A T T O R N E Y GENERAL,

Respondent.

F O R PETITIONER: N o r m a n Kwai Wing Wong, New York, New

York.

F O R RESPONDENT: T a r a Louise Casey, Assistant United S t a t e s Attorney for Chuck Rosenberg, U n i t e d States Attorney for the E a s t e r n District of Virginia U P O N DUE CONSIDERATION of this petition for review of a d e c i s i o n of the Board of Immigration Appeals ("BIA"), it is h e r e b y ORDERED, ADJUDGED, AND DECREED, that the petition for r e v i e w is DENIED.

P e t i t i o n e r Hong Yan Huang, a native and citizen of C h i n a , seeks review of a August 29, 2006 order of the BIA a f f i r m i n g the May 16, 2005 decision of Immigration Judge ( " I J " ) Margaret McManus denying petitioner's applications f o r asylum, withholding of removal, and relief under the C o n v e n t i o n Against Torture ("CAT"). In re Hong Yan Huang, N o . A79683167 (B.I.A. Aug 29, 2006), aff'g No. A79683167 ( I m m i g . C t . N.Y.City May 16, 2005). We assume the parties' f a m i l i a r i t y with the underlying facts and procedural history o f the case.

W h e n the BIA summarily affirms the decision of the IJ w i t h o u t issuing an opinion, see 8 C.F.R. § 1003.1(e)(4), t h i s Court reviews the IJ's decision as the final agency determination. See, e.g., Twum v. INS, 411 F.3d 54, 58 (2d C i r . 2005); Yu Sheng Zhang v. U.S. Dep't of Justice, 362 F . 3 d 155, 159 (2d Cir. 2004) (per curiam). We review de n o v o questions of law and the application of law to u n d i s p u t e d fact. Secaida-Rosales v. INS, 331 F.3d 297, 307 ( 2 d Cir. 2003). However, we review the agency's factual f i n d i n g s under the substantial evidence standard, treating t h e m as "conclusive unless any reasonable adjudicator would b e compelled to conclude to the contrary." 8U.S.C. § 1 2 5 2 ( b ) ( 4 ) ( B ) ; see, e.g., Zhou Yun Zhang v. U.S. INS, 386 F . 3 d 66, 73 & n.7 (2d Cir. 2004).

T h e IJ correctly determined that the altercations and a r g u m e n t s that Huang had with the Chinese traffic and tax o f f i c i a l s did not rise to the level of past persecution.

P e r s e c u t i o n clearly includes physical harm that threatens t h e victim's "life or freedom," but non-life-threatening v i o l e n c e and physical abuse may constitute persecution as well. Tian-Yong Chen v. U.S. INS, 359 F.3d 121, 128 (2d C i r . 2004). However, "Persecution does not encompass mere harassment." Beskovic v. Gonazles, 467 F.3d 223, 226 (2d C i r . 2006) (internal quotation marks omitted). The d i f f e r e n c e between harassment and persecution is " n e c e s s a r i l y one of degree that must be decided on a c a s e - b y - c a s e basis." Ivanishvili v. U.S. Dep't of Justice, 4 3 3 F.3d 332, 341 (2d Cir. 2006). During none of her e x c h a n g e s with the Chinese government was Huang arrested, d e t a i n e d or physically abused, nor were threats made against h e r family members. Thus, the IJ was reasonable in finding t h a t Huang failed to establish past persecution.

A s Huang failed to establish past persecution, she was n o t entitled to the presumption of a well-founded fear. See 8 C.F.R. § 1208.13(b). Moreover, Huang's fear that she will s u f f e r punishment for illegal departure upon return to China f o r violating the applicable departure rules is, standing a l o n e , a legally inadequate ground for a claim for asylum b a s e d on a well-founded fear of persecution. See Yang v. M c E l r o y , 277 F.3d 158, 163 n.5 (2d Cir. 2002) (per curiam).

M o r e o v e r , the treatment Huang complained of -- an u n f a v o r a b l e determination of fault following her parents' c o l l i s i o n with a government vehicle and tax officials' d e m a n d s that she pay back taxes for the period following her f a t h e r ' s death while the family's fruit stand was closed - w a s not the result of Huang's political beliefs. See Y u e q i n g Zhang v. Gonsales, 426 F.3d 540, 545 (2d Cir. 2005); M a t t e r of Acosta, 19 I. & N. Dec. 211, 222 (BIA 1985), o v e r r u l e d , in part, on other grounds, INS v. C a r d o z a - F o n s e c a , 480 U.S. 421 (1987) (to constitute past p e r s e c u t i o n , the "harm or suffering had to be inflicted upon a n individual in order to punish him for possessing a belief o r characteristic a persecutor sought to overcome," and had t o be "inflicted either by the government of a country or by p e r s o n s or an organization that the government was unable or u n w i l l i n g to control") While Huang did protest the i m p o s i t i o n of taxes, there is nothing to suggest that her p r o t e s t "mounted a challenge to the legitimacy and authority o f the ruling regime itself," comprising a "political threat." Yueqing Zhang v. Gonsales, 426 F.3d 547 (internal q u o t a t i o n marks omitted). Thus, the IJ was correct in f i n d i n g that even if Huang could be found to have suffered p a s t persecution, the persecution would not have been on a a c c o u n t of a protected ground.

A s Huang failed to establish a claim for asylum, she n e c e s s a r i l y failed to meet the higher burden required for w i t h h o l d i n g of removal. See Paul v. Gonzales, 444 F.3d 148, 1 5 6 (2d Cir. 2006).

F i n a l l y , substantial evidence supports the IJ's finding t h a t Huang failed to establish that she would more likely t h a n not be tortured upon return to China. Although an a p p l i c a n t for CAT relief need not demonstrate that torture w o u l d be inflicted on account of a protected ground, Huang h a s not alleged any basis for her claim that she would be t o r t u r e d in China. Huang argues that the IJ's failure to m a k e a Country Conditions Report part of the record requires remand. However, the record reveals that Huang never a t t e m p t e d to offer such a report into evidence, nor does she o f f e r any authority for the proposition that the IJ is r e q u i r e d to independently make a Report part of the record.

E v e n assuming that such a requirement existed, Huang has not e x p l a i n e d what information contained in the Report could h a v e established that she was eligible for CAT, i.e. i n f o r m a t i o n that someone in her "particular alleged c i r c u m s t a n c e s " was more likely than not to be tortured in China. See Mu Xiang Lin v. U.S. Dep't of Justice, 432 F.3d 1 5 6 , 159-60 (2d Cir. 2005) (internal quotation marks omitted). As Huang has not suggested any circumstances that w o u l d make her particularly likely to be tortured, the IJ p r o p e r l y denied her CAT claim.

F o r the foregoing reasons, the pending petition for r e v i e w is DENIED. Having completed our review, the pending m o t i o n for a stay of removal in this petition is DISMISSED a s moot.

F O R THE COURT: T h o m a s Asreen, Acting Clerk By: O l i v a M. George, Deputy Clerk

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