Xing Ming Huang v. Attorney Gen. of the U.S.
| Decision Date | 01 July 2013 |
| Docket Number | No. 12-1817,12-1817 |
| Parties | XING MING HUANG Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES Respondent |
| Court | U.S. Court of Appeals — Third Circuit |
NOT PRECEDENTIAL
On Petition for Review of an Order of the
Board of Immigration Appeals
Immigration Judge: Honorable Miriam K. Mills
Before: SCIRICA, HARDIMAN, and VAN ANTWERPEN, Circuit Judges
Bruno J. Bembi, Esq. [ARGUED]
Attorney for Petitioner
Nancy E. Friedman, Esq. [ARGUED]
Eric H. Holder, Jr., Esq.
Thomas W. Hussey, Esq.
Nicole Prairie, Esq.
United States Department of Justice
Office of Immigration Litigation, Civil Division
Attorneys for Respondent
Xing-Ming Huang ("Petitioner"), a citizen of the People's Republic of China, petitions for review of a final order of removal, which, inter alia, denied his request for asylum relief under 8 U.S.C. § 1158. The question presented is a narrow one. It remains undisputed that Petitioner has met his threshold burden for asylum relief by demonstrating that he suffered past persecution on account of his having, in the past, resisted China's family planning policies. That past persecution entitles him to a rebuttable presumption that he has a well-founded fear of persecution should he return to China. See 8 C.F.R. § 208.13(b)(1). The issue in dispute is whether the Government has met its burden in rebutting that presumption.1 For the reasons that follow, we agree with Petitioner that, at this point, the Government has failed to present sufficient evidence to establish that he would not suffer future persecution as a result of his prior "otherresistance" to China's family planning policy. Accordingly, we will grant the petition for review and remand Petitioner's application for further proceedings.
Petitioner arrived at the United States on or about January 6, 2005, at or near Hidalgo, Texas, without inspection. On January 8, 2005, he was served with a Notice to Appear, which alleged he was removable from the United States as being inadmissible under 8 U.S.C. § 1182(a)(6)(A)(i).2 Petitioner has since conceded his removability on those grounds.
On July 11, 2005, Petitioner formally requested asylum and related relief,3 alleging he suffered past persecution for his having previously resisted China's strict family planning policies. In 1995, while living in China's Fujian Province, Petitioner's wife gave birth to a child. Unfortunately, that child was born with a debilitating intestinal abnormality, which required corrective surgery. The child still requires continuing medical care and attention. Consequently, Petitioner and his wife wanted a second child. Their having a second child, however, would have violated China's family planning policy.
After the birth of Petitioner's first child, the Chinese government forcibly installed an intrauterine device in his wife to prevent her from again becoming pregnant. In December 1995, Petitioner arranged for the device to be removed by a private physician. Petitioner's wife then became pregnant for a second time in May 1996. Eventually, her pregnancy was discovered by the local family planning authorities. Because the pregnancy violated China's family planning policy, Petitioner's wife was required to undergo a forced abortion.
When the officials arrived at his home to take away his wife for the procedure, Petitioner attempted to stop them. He was severely beaten by the officers, sustaining injuries which required surgery, left him hospitalized for two months, and required almost a year for complete recovery. After her forced abortion, Petitioner's wife had another intrauterine device forcibly inserted and was required to report regularly to Chinese authorities for gynecological exams.4 After being released from the hospital, Petitioner was charged criminally for fighting with a Chinese government official and was forced to receive "re-education." Years later, both Petitioner and his wife fled China for the United States.
On November 2, 2005, an initial hearing was held regarding Petitioner's application. On November 14, 2005, the Immigration Judge ("IJ") denied Petitioner relief on the ground that, inter alia, Petitioner's testimony was not credible. The Boardof Immigration Appeals ("BIA") reversed and remanded, finding Petitioner had testified credibly. Furthermore, the BIA stated that although Petitioner himself was not forced to undergo coercive medical procedures on account of China's family planning policy, he "nevertheless may still qualify as a refugee on account of a well-founded fear of persecution . . . for other resistance to a coercive population control program." Accord Lin-Zheng v. Att'y Gen., 557 F.3d 147, 157 (3d Cir. 2009). In light of Petitioner's resistance to family planning officials, the BIA ordered that, upon remand, the IJ conduct a hearing to determine if Petitioner qualified as a refugee under this "other resistance" category.
On remand, the IJ again denied Petitioner relief. At the hearing, Petitioner testified as to the incident that occurred when the Chinese authorities came to take his wife and the injuries he sustained from the resulting beating. Petitioner's wife also testified, corroborating Petitioner's account of the circumstances forming the basis of his asylum claim. When asked what would happen to him should he return to China, Petitioner testified that he feared he would be "fined, arrested, and tortured" for fleeing to the United States with the assistance of snakeheads.5 Petitioner also testified that he feared being "fined, arrested, and sterilized" if he returns to China, on account of hisdesire to have more children with his wife and his having had another child abroad.6 The IJ found Petitioner's testimony credible.
The IJ concluded that Petitioner suffered harm rising to the level of persecution when he was beaten by the Chinese family planning authorities. Accord Voci v. Gonzales, 409 F.3d 607, 614-16 (3d Cir. 2005). Because Petitioner was beaten while attempting to stop the family planning officials from taking his wife to have a forced abortion, the IJ found that Petitioner suffered this persecution because of his "other resistance to a coercive population control program." 8 U.S.C. § 1101(a)(42). Accordingly, Petitioner was deemed to have suffered persecution on account of his political opinion, and thus was entitled to a rebuttable presumption of a well-founded fear of persecution should he return to China. See 8 C.F.R. § 208.13(b)(1).
All the same, the IJ found that the Government presented sufficient evidence to meet its burden to rebut Petitioner's presumption of a well-founded fear of persecution. Specifically, the Government presented evidence before the IJ that a new law, which supposedly went into effect in September 2002, now permits Chinese couples living in the Fujian Province to request permission to have a second child where, as in Petitioner's case, that couple's first child was handicapped such that the child would not be able to "work normally." Although acknowledging that Petitioner and his wife did not obtain formal permission from the Chinese government for their second child born in the UnitedStates, the IJ concluded that "the birth otherwise appear[ed] permissible under the Fujian law."
The Government also presented evidence from certain United States Department of State country background reports. These reports explained, inter alia, that neither China nor Fujian Province exhibit a policy of sterilizing returning Chinese nationals who have had a second child while abroad. At most, Petitioner would be subject to fines or increased costs for the education of his second child or for certain social benefits. But the BIA had previously held that such monetary penalties do not constitute persecution sufficient to establish asylum eligibility. See, e.g., In re J-W-S-, 24 I. & N. Dec. 185, 191, 194 (BIA 2007). See also Li v. Att'y Gen., 400 F.3d 157, 168 (3d Cir. 2005). What is more, the Fujian Province does not count children born abroad toward the limitations in the family planning laws, unless those children are registered as permanent Chinese residents.
Noticeably absent from the IJ's analysis was discussion of any evidence showing that Petitioner would not suffer persecution upon returning to China as a result of his "other resistance" to China's family planning policy—that is, evidence showing that Petitioner would not be subject to future persecution on account of his having, in the past, resisted and interfered with the execution and enforcement of China's family planning policy.7
Petitioner then appealed to the BIA, which adopted and affirmed the decision of the IJ. The BIA agreed with the IJ that the Government had established a fundamental change in country conditions sufficient to rebut Petitioner's presumption of a well-founded fear of persecution. The BIA based its decision primarily on the new law implemented in 2002 in the Fujian Province and a decrease in reported occurrences of violent coercive enforcement measures.
Notably, before the BIA, Petitioner argued that the IJ had erred by "conflating" his rebuttable presumption of a well-founded fear of persecution based on his past persecution—that is, his having been beaten for his "other resistance" to China's family planning policy—with his supplemental fears about returning to China. The BIA admitted that there was "some merit" to Petitioner's argument, but found that "the passage of time and change in policy" in the Fujian Province rendered the IJ's error harmless. Resting on this reasoning, the BIA, like the IJ, neglected to reference any evidence showing that Petitioner would not be persecuted should he return to China for having, in the past, resisted or interfered with the execution or enforcement of the country's family planning policies.8 Accordingly, the BIA dismissed Petitioner's appeal. Petitioner...
To continue reading
Request your trial