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Huang v. U.S. Attorney General

United States Court of Appeals, Eleventh Circuit

December 24, 2014

MIN YONG HUANG, a.k.a. Minyong Huang, Petitioner,
v.
U.S. ATTORNEY GENERAL, Respondent

Petition for Review of a Decision of the Board of Immigration Appeals. Agency No. A200-932-341.

For MIN YONG HUANG, Minyong Huang, Petitioner: Huiyue Qiu, Qiu Law Office, Union, NJ.

For U.S. Attorney General, Respondent: Kristin Moresi, Jennifer A. Singer, John D. Williams, Krystal Samuels, U.S. Department of Justice, Civil Division, Washington, DC; Nicole Guzman, DHS, Office of Chief Counsel, Orlando, FL.

Before WILSON and ROSENBAUM, Circuit Judges, and HUCK,[*] District Judge.

OPINION

Page 1343

ROSENBAUM, Circuit Judge

It's not always enough to say that you did something. Sometimes, you have to show it as well. Or at least you have to not do something else that may raise a question as to whether you did what you said you did.

In this petition, the Board of Immigration Appeals affirmed the Immigration judge's denial of Petitioner Min Yong Huang's petition for asylum, withholding of removal, and relief under the United Nations Convention Against Torture, stating that it had considered all of the " harm" that Huang suffered in China when it concluded that Huang had not been persecuted in the past on the basis of his religion. We have no doubt that the BIA believed when it wrote this conclusion that it did

Page 1344

consider all types of harm to Huang, and, in fact, it may have done so.

But the BIA's explanation for why it reached the determination that Huang had not endured past persecution reflects only that it considered Huang's physical harm, not all forms of religious abuse that Huang suffered. So we cannot tell whether the BIA actually took into account the non-physical abuse to Huang when it rejected Huang's claim of past persecution. For this reason, this matter must be remanded to the BIA to clarify whether it considered whether Huang's non-physical harm, along with Huang's physical harm, rises to the level of " persecution," in light of our decision in Shi v. United States Attorney General, 707 F.3d 1231 (11th Cir. 2013), and if the BIA did not consider Huang's non-physical harm, to evaluate that, along with Huang's physical harm, in determining whether Huang endured past persecution.

I.

Where, as here, the BIA issues a decision, this Court reviews only that decision, except that we review any portion of the Immigration judge's decision that the BIA expressly adopted. Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). We review the BIA's factual determinations under the substantial evidence test. Id. at 1283-84. Under this test, we must affirm the BIA's decision if it is " supported by reasonable, substantial, and probative evidence on the record considered as a whole." Id. at 1284 (citation and internal quotation marks omitted). We review de novo the BIA's interpretation of applicable statutes, and we must defer to the BIA's interpretation " if that interpretation is reasonable." Id. (citation and internal quotation marks omitted).

II.

Min Yong Huang is a native and citizen of the People's Republic of China. He possesses Chinese ethnicity and asserts that he is a Christian. Huang, who claims that he originally entered the United States on October 20, 2009, filed an application for asylum, withholding of removal, or relief under the United Nations Convention Against Torture (" CAT" ) on the basis that he would be persecuted for being a practicing Christian if he were returned to China. An asylum officer declined to grant the application and referred it to the Immigration Court.

On January 13, 2011, the government issued a " Notice to Appear," charging Huang with removability under 8 U.S.C. ยง 1182(a)(6)(A)(i), as an alien present in the United States without being admitted or paroled. Through counsel and written pleadings, Huang admitted the factual allegations set forth in the Notice to Appear and conceded his removability, but ...


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