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Huang v. Mukasey

May 8, 2008

AN NA HUANG AND ZHOU WU DONG, PETITIONERS,
v.
MICHAEL B. MUKASEY, ATTORNEY GENERAL OF THE UNITED STATES, RESPONDENT.



Petition for Review of an Order of the Board of Immigration Appeals. Nos. A96-171-594 & A78-433-179

The opinion of the court was delivered by: Flaum, Circuit Judge.

ARGUED FEBRUARY 15, 2008

Before FLAUM, WOOD, and EVANS, Circuit Judges.

An Na Huang and Zhou Wu Dong are both natives and citizens of China. They applied for asylum, withholding of removal, and relief under the Convention against Torture, alleging that they had been persecuted and tortured on account of Huang's pregnancy prior to having obtained a legal marriage, and the couple's refusal to pay the accompanying fine. The Immigration Judge found that petitioners' asylum claims were untimely, and that the remainder of their claims failed due to lack of credibility and evidence. We agree, and therefore deny the petition for review.

I. Background

Before coming to the United States, Huang lived in Lian Jiang County, Fujian Province, China. She worked as a self-employed seamstress. On January 1, 1996, at age 19, she married Dong in a traditional Chinese ceremony. The couple did not register their marriage and obtain a license*fn1 because she was underage at the time. After Huang*fn2 and Dong married, they lived in his parents' home in the village of Guantou Town. Huang testified that she remained registered with her parents' household, and would occasionally visit them in the nearby village of Dong Xi.

In December 1995, prior to their traditional marriage, Huang claims that she learned that she was pregnant after a visit to a private doctor. A few months after their marriage, on March 5, 1996, at approximately 8:00 AM, Huang testified that Family Planning officials arrived at her husband's parents' home. They told her that they knew she was culturally wedded to her husband and that she was eligible for a routine medical exam. Alone at the time, Huang submits that she was forcefully taken to the Lian Jiang County Hospital where her pregnancy was discovered. She says that she was then pushed down on an operating table, made unconscious, and subjected to an abortion procedure. Afterwards, she requested a certificate from the hospital stating that she had gone through this procedure and that she should be allowed to rest for seven days. Huang testified that the entire process-from the officials arriving at the home to her discharge from the clinic-took two-and-a-half hours.

Two days later, Huang claims to have received a hand-delivered notice of a fine from the Guantou Town Birth Control Office demanding that she pay 3000 yuan renminbi ("RMB") for violating the Fujian Province Birth Control Policy. This fine-equivalent to about 370 dollars-was about as much as the couple's annual income. They decided to forgo paying the fine, and three days later, a Public Security Bureau messenger delivered a summons to the home in Dong's name. While it does not state it, we assume that the summons was issued for failure to pay the fine. Instead of reporting to the Public Security Bureau as requested, Dong went into hiding in Fuzhou City. He returned on March 25, 1996, after hearing that his mother had fallen ill. Thirty minutes after his arrival, at 8:00 AM, two officials from the Public Security Bureau and one from the Birth Control Office came to the house and arrested him. Dong submits that he was taken to the Lian Jiang County Jail where he remained for a year. During his detention, he claims that he was tortured, specifically by having electricity applied to his genitals. Dong was released on March 27, 1997. Huang asserts that she attempted to pay the fine earlier while Dong was in jail, but authorities told her that he was to remain detained for a full year. The receipt from the payment to the Birth Control Office indicates that Dong was the payor, and that the reason for collection of payment was "early birth without marriage."

After Dong was released from prison, the couple continued to live in his parents' home until June 2000. At that time, Dong paid $50,000 to a member of the Snakehead gang to be smuggled into the United States. Huang followed suit and also paid $50,000 to a Snakehead to get smuggled into the United States in February 2002. She claims that her precise date of entry was February 14, 2002. The couple has two children, both of whom were born in the United States. The first was born on January 2, 2003, and the second was born on March 29, 2004.

On August 6, 2002, the Immigration and Naturalization Service ("INS") issued Dong a Notice to Appear, charging him with removability pursuant to 8 U.S.C. § 1227(a)(1)(A). Huang filed an application for asylum with the Department of Homeland Security ("DHS") on February 13, 2003.*fn3 Later, on March 24, 2003, she too was charged with removability. Both Huang and Dong conceded that they were removable. Their cases were consolidated, and a merits hearing on Huang's application for asylum was held on September 29, 2005. The Immigration Judge ("IJ") issued a decision denying all relief and ordering both Huang and Dong removed to China. The Board of Immigration Appeals ("BIA") agreed with the IJ, and Huang and Dong now present their petition for review.

II. Discussion

Huang and Dong argue that the IJ erred in denying their claims involving asylum, withholding of removal, and the Convention against Torture ("CAT"). We analyze each issue in turn.

A.

The Immigration and Nationality Act ("INA") gives the Attorney General discretion to grant asylum to an alien who qualifies as a refugee, which refers to an alien who is unwilling or unable to return to her home country "[b]ecause of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1101(a)(42)(A). But there are limits to this protection. The INA requires that asylum applications be filed within one year of an alien's arrival in the United States. 8 U.S.C. § 1158(a)(2)(B). The alien must prove that she has timely filed her application by clear and convincing evidence. Id. The only exceptions to the ...


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