Ming Xiang Huang v. United States Department of Justice
Ming Xiang Huang v. United States Department of Justice
Opinion of the Court
SUMMARY ORDER
Petitioner Ming Xiang Huang, a native and citizen of the People’s Republic of China, seeks review of a September 26, 2008 order of the BIA affirming the July 30, 2007 decision of Immigration Judge (“LJ”) Sarah M. Burr denying Huang’s applications for asylum, withholding of re
When the BIA adopts the decision of the IJ and supplements the IJ’s decision, this Court reviews the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review the agency’s factual findings under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir. 2007). We review de novo questions of law and the application of law to undisputed fact. See, e.g., Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).
As an initial matter, this Court does not have jui'isdietion to address Huang’s challenge to the IJ’s denial of CAT relief because he failed to exhaust any challenge to that determination before the BIA. See 8 U.S.C. § 1252(d)(1); Karaj v. Gonzales, 462 F.3d 113, 119 (2d Cir. 2006).
The IJ denied Huang’s application for asylum because he found that Huang had not established that his resistance to China’s family planning policy was “at least one central reason” for the persecution he feared. See 8 U.S.C. §§ 1158(b)(l)(B)(i), 1101(a)(42). Although Huang asserts that he brandished a cleaver and threatened family planning officials to obstruct their efforts to implement the family planning policy, substantial evidence supports the agency’s finding that Huang failed to demonstrate his opposition to the family planning policy was one central reason that the police sought him. See Manzur, 494 F.3d at 289-94.
Punishment for violation of a generally applicable criminal law is not persecution. See Saleh v. U.S. Dep’t of Justice, 962 F.2d 234, 239 (2d Cir. 1992). However, in evaluating motive in a case in which “prosecution for an offense may be a pretext for punishing an individual for his political opinion, ... the evidence must be evaluated ... to determine whether the motive for the abuse in the particular case was directed toward punishing or modifying perceived political views, as opposed to punishment for criminal acts ... [or] was motivated by some other reason unrelated to asylum law.” Matter of S-P-, 21 I. & N. Dec. 486, 493-94 (B.I.A. 1996); see also Vumi v. Gonzales, 502 F.3d 150 (2d Cir. 2007). Here, Huang’s own testimony supports the agency’s finding that police sought his arrest to prosecute him for a crime based on the threats he made against officials with the cleaver. See INS v. Elias-Zacarias, 502 U.S. 478, 483, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (finding that even assuming that a petitioner has
Because substantial evidence supports the IJ’s finding that Huang failed to demonstrate the requisite nexus to a protected ground, the agency properly denied his application for asylum. See 8 U.S.C. § 1158(b)(l)(B)(i). Because Huang was unable to show the objective likelihood of persecution needed to make out an asylum claim, he was necessarily unable to meet the higher standard required to succeed on a claim for withholding of removal. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir. 2006). Therefore, we need not address the BIA’s alternate finding that Huang was ineligible for asylum and withholding of removal because he committed a serious nonpolitical crime. See 8 U.S.C. §§ 1158(b)(2)(A)(iii), 1231(b)(3)(B)(iii).
For the foregoing reasons, the petition for review is DISMISSED, in part, and DENIED, in part. As we have completed our review, the pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
. Contrary to the government’s argument, however, we consider Huang's challenge to the IJ's denial of his application for withholding of removal exhausted because the BIA addressed his eligibility for that relief. See Xian Tuan Ye v. DHS, 446 F.3d 289, 296-97 (2d Cir. 2006); Waldron v. INS, 17 F.3d 511, 515 n. 7 (2d Cir. =1994).
. Contrary to the government's suggestion that we would lack jurisdiction to consider these arguments, we have found that issue exhaustion is not jurisdictional, although it is mandatory. See Lin Zhong, 480 F.3d at 119-20.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.