Huang v. I.N.S.

Citation436 F.3d 89
Decision Date25 January 2006
Docket NumberNo. 02-4602-AG.,02-4602-AG.
PartiesWu Zheng HUANG, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Steven A. Mundie, Baron & Mundie, P.C., New York, N.Y., for Petitioner.

Robert David Rees, Assistant United States Attorney, for Kevin V. Ryan, United States Attorney for the Northern District of California (Hannah Horsley, Assistant United States Attorney, on the brief), San Francisco, Cal. for Respondent.

Before: NEWMAN, CALABRESI and STRAUB, Circuit Judges.

CALABRESI, Circuit Judge.

In this unusual case involving a denial of asylum as a matter of discretion, Wu Zheng Huang ("Wu" or "Petitioner") petitions for review of a September 19, 2002 Board of Immigration Appeals ("BIA") decision summarily affirming the April 6, 1999 oral decision of an Immigration Judge ("IJ"). Wu argues on appeal that certain of the IJ's factual findings were not supported by substantial evidence, and that in any event the IJ abused his discretion in denying asylum on the basis of those findings. Respondent defends the IJ's denial of asylum on the merits, but also challenges this court's jurisdiction to hear Wu's appeal, arguing that Wu failed to exhaust an automatic right to BIA reconsideration of an IJ's discretionary denial of asylum, see 8 C.F.R. § 1208.16(e)1. We hold that Wu has exhausted his administrative remedies, grant the petition for review, and affirm in part and vacate and remand in part the BIA's decision.

BACKGROUND

Petitioner Wu, a native and citizen of the People's Republic of China, entered the United States illegally and was immediately detained by immigration authorities at Brownsville, Texas. He conceded removability, but sought asylum and withholding of removal pursuant to the Immigration and Nationality Act (INA), §§ 208(b)(1), 241(b)(3)(A), as amended, 8 U.S.C. §§ 1158(b)(1), 1231(b)(3)(A).

In his application for asylum and at his hearing before the IJ, Wu offered credible testimony corroborated by medical and documentary evidence to show that in 1990, after the birth of his second child, he was forcibly subjected to a vasectomy by Chinese family planning authorities.2 Wu also testified that after his sterilization, he became politicized about family planning policies in China, and that he came into conflict with the head of his village on the subject and spoke openly about his views. The first incident of confrontation over the policies, according to his testimony and I-589 application, occurred when Wu's son, then nine years old, vocally objected to a film he was shown in school regarding the patriotism of Chinese family planning policy. Wu attested that the head of his village summoned Wu, informed him that anti-governmental views and parental teachings would not be tolerated, and threatened to arrest him if he continued to speak out. Wu objected, saying that the government lacked respect for human rights by forcing sterilizations. Wu also testified that one year later he had a second, similar confrontation with the village head, and he began to oppose publicly the family planning policy. Wu's written application, however, did not mention this second confrontation or his public opposition.

"[O]n the whole," the IJ found Wu to be credible "up to a point." The IJ believed, based on medical evidence from an American physician and a Chinese sterilization certificate, that Wu had been forcibly sterilized pursuant to Chinese family planning policy. The IJ stated: "He has testified that he was forced to be sterilized and I believe him." He found that Wu "established that he has a well-founded fear of persecution within the meaning of our laws," and was therefore eligible for asylum. See 8 U.S.C. § 1101(a)(42) (as amended by Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, § 601(a)(1), 110 Stat. 3009-689) (granting per se eligibility for asylum based on forced sterilization). The IJ also found that Wu had met his burden with respect to withholding of removal to China.

The IJ refused, however, to exercise his discretion to grant Wu asylum. He found that Wu had attempted to "deceive the Court" by embellishing his claims. Specifically, the IJ stated (1) that Wu mentioned two clashes with the village head in his testimony, while his I-589 application for asylum had implied that there had been only one such encounter; (2) that Wu embellished or fabricated testimony regarding his public opposition to family planning (this finding was based on the fact that Wu had not mentioned this activity in his written asylum application); and (3) that Wu made up testimony regarding a one-month hiding period within China prior to leaving the country. In addition to this credibility-related concern, the IJ noted as a second "adverse factor" that Wu had used a professional smuggler to leave China.3 The IJ repeatedly emphasized that his decision on the asylum claim was made "as a matter of discretion."

Petitioner appealed, and on September 19, 2002, the Board of Immigration Appeals affirmed the IJ's decision without opinion. Wu filed a timely petition for review. He did not seek reconsideration of either the IJ's or the BIA's orders.

DISCUSSION

This case presents two primary issues. First, we consider whether a failure to exhaust what, arguably, is an automatic right to BIA reconsideration of an IJ's discretionary denial of asylum, see 8 C.F.R. § 1208.16(e), denies this court jurisdiction over a petition for review. Second, we address (a) whether, on the facts, the IJ's partial adverse credibility finding was supported by substantial evidence, and (b) whether the IJ properly relied on that finding and on Wu's use of a smuggler as a basis for denying asylum as a matter of discretion. Discretionary denials of asylum are exceedingly rare. Neither side has presented (nor have we found) a case involving a jurisdictional challenge under 8 C.F.R. § 1208.16(e), or an exercise of agency discretion to deny asylum based on factual findings like those in the case before us.4

The government does not now challenge, and we accordingly affirm, the agency's conclusion that Wu made a sufficient showing of a well-founded fear of persecution to warrant withholding of removal to China and to establish eligibility for asylum.

1. Exhaustion Requirements in Light of 8 C.F.R. § 1208.16(e)

Federal regulations provide special and unusual rights to an alien who has been denied asylum, on a discretionary basis, where that denial will preclude the alien from admitting his/her spouse or minor children:

Reconsideration of discretionary denial of asylum. In the event that an applicant is denied asylum solely in the exercise of discretion, and the applicant is subsequently granted withholding of deportation or removal under this section, thereby effectively precluding admission of the applicant's spouse or minor children following to join him or her, the denial of asylum shall be reconsidered. Factors to be considered will include the reasons for the denial and reasonable alternatives available to the applicant such as reunification with his or her spouse or minor children in a third country.

8 C.F.R. § 1208.16(e). Respondent argues that this language is mandatory, obliging an alien covered by the regulation to move for reconsideration by the BIA. Thus, the government argues, since Petitioner failed to bring a motion to reconsider within thirty days of the agency decision, he did not exhaust his obligation to seek "all possible relief" within the administrative agency before seeking federal judicial review. See 8 U.S.C. § 1252(d) ("A court may review a final order of removal only if... the alien has exhausted all administrative remedies available to the alien as of right").

Respondent's contention ignores the significance of some key language in the regulation. That language mandates reconsideration when an applicant is granted withholding "subsequently" to a discretionary denial of asylum. As such, the language would most reasonably be read to apply to situations (unlike the one before us) in which the BIA had affirmed a discretionary denial of asylum, and subsequently (for whatever reasons, perhaps new facts or circumstances), the alien was granted withholding of removal.5 In such situations, the regulation would appear to require the BIA to revisit its discretionary decision as to asylum, in order to facilitate family reunification.

In the case before us, the IJ denied asylum and granted withholding of removal in the same decision. As a result, reconsideration in the light of that grant would arguably not be mandated, and Petitioner would not have failed to take advantage of an available immigration remedy. But, even apart from this plausible reading of the regulation, and assuming away, arguendo, the significance of the word "subsequently" in the text, we conclude that Petitioner has met all relevant exhaustion requirements.

Respondent's argument hinges on an interpretation of 8 C.F.R. § 1208.16(e) that would place a duty solely on the petitioner to move for reconsideration, as opposed to requiring the BIA (or the IJ for that matter) to reconsider any denial of asylum sua sponte. Compare 8 C.F.R. § 1003.2(b) (describing the requirements of filing a motion to reconsider, including a thirty-day filing window following the contested agency decision) with 8 C.F.R. § 1003.2(a) ("The Board may at any time reopen or reconsider on its own motion any case in which it has rendered a decision."). See also Li Yong Zheng v. U.S. Dep't of Justice, 416 F.3d 129, 130 (2d Cir.2005) (per curiam) ("[T]he BIA has the authority to reopen any case at any time sua sponte."). But Respondent's reading of 8 C.F.R. § 1208.16(e) would convert what is manifestly a law designed to further the reunification of families into an additional burden on a petitioner (to move formally for a reconsideration pursuant to 8 C.F.R. §...

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