De Ming Huang v. Mukasey , 276 F. App'x 2 ( 2008 )

Not For Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 07-1484
DE MING HUANG,
Petitioner,
v.
MICHAEL B. MUKASEY,*
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Circuit Judge,
John R. Gibson,** Senior Circuit Judge,
and Lipez, Circuit Judge.
Henry Zhang and Zhang and Associates, P.C., on brief for
petitioner.
Flor M. Suárez, Attorney, Office of Immigration Litigation,
Civil Division, Peter D. Keisler, Assistant Attorney General, Civil
Division, and Joshua E. Braunstein, Senior Litigation Counsel,
Office of Immigration Litigation, on brief for respondent.
May 8, 2008
*
Pursuant to Fed. R. App. P. 43(c)(2), Attorney General Michael
B. Mukasey is substituted for former Attorney General Alberto R.
Gonzáles as respondent.
**
Of the Eighth Circuit, sitting by designation.
Per Curiam. De Ming Huang is a citizen of China who
overstayed his six-month visa to the United States. He applied for
asylum, withholding of removal, and relief under the Convention
Against Torture ("CAT"), alleging that he suffered persecution from
the Chinese government on the basis of his political beliefs. The
Immigration Judge ("IJ") denied all of his claims and the Board of
Immigration Appeals ("BIA") affirmed without opinion. Huang now
petitions for review.1
We do not grant a petition for review unless the evidence
compels the conclusion, contrary to the IJ's findings, that the
petitioner met his burden of proving that he suffered past
persecution or has a well-founded fear of future persecution based
on one of five enumerated grounds. See 8 U.S.C. § 1101(a)(42)(A);
see also Wang v. Mukasey, 508 F.3d 80, 84 (1st Cir. 2007). We
review credibility determinations under the substantial evidence
standard; an adverse credibility finding is overturned only where
the evidence compels it. López de Hincapie v. Gonzáles, 494 F.3d
213, 218 (1st Cir. 2007). The IJ must, however, provide "a
specific, cogent, and supportable explanation" for rejecting the
testimony as not credible. Heng v. Gonzáles, 493 F.3d 46, 48 (1st
1
Although Huang cites the applicable legal standards for
withholding of removal and protection under the CAT, he fails to
put forth any arguments in support of those claims. We therefore
deem them to be waived and review only his claim for asylum. See
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
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Cir. 2007) (citing Settenda v. Ashcroft, 377 F.3d 89, 93 (1st Cir.
2004)).
Huang's application is predicated on two groups of
events: (1) attacks by the Communist government police and (2)
incidents while he was a member of the Chinese armed forces. With
respect to both, the IJ concluded that Huang's testimony was not
credible because of its vagueness, lack of detail, and
inconsistencies, which raise questions as to Huang's candor.
Huang testified that in 1979, when he was working in his
family's grocery store, police officers of the Communist government
came to the store and accosted and beat his father. Huang alleges
that when he stepped in to defend his father, he was arrested and
taken to the police station where he was beaten and imprisoned for
twenty-four hours without food or water. A similar incident
allegedly occurred one month later. Although the police ostensibly
came to the store to collect unpaid taxes, Huang alleges that the
visits were intended to persecute him and his father on account of
their democratic political beliefs.
In making his adverse credibility determination, the IJ
observed that Huang had stated that it was his father who was
arrested by the police in his written application. Huang did not
list any arrests in his application. Yet, he testified that he had
been arrested and beaten by the police officers on account of his
political beliefs. In addition to highlighting this inconsistency,
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the IJ noted that Huang's testimony made only "vague assertions of
[his] belief in democracy." Huang argues that the IJ makes too
much of minor inconsistencies; we disagree. Indeed, the lack of
detail which plagues Huang's testimony and the inconsistencies
regarding the 1979 incidents at the family grocery store are not
trivial but rather are central to his claim. Whether it was Huang
or his father who was beaten, arrested, and then taken to the
police station is critical. Moreover, whether the arrests were in
retaliation for Huang's political beliefs or simply arrests for
interference with a criminal investigation into unpaid taxes is
central to Huang's application.
Huang also testified that he suffered mistreatment as a
member of the Chinese armed forces. He alleges that he was forced
to carry out menial kitchen and latrine duties, beaten, and sprayed
with feces. He claims that the treatment was a result of political
persecution because others in the armed forces were aware of his
political beliefs. Huang testified that he fled the army, without
permission, after one year and has lived in hiding for nearly two
decades.
Again, the IJ found Huang's testimony to be lacking in
important detail and not credible. The IJ found that Huang made
only vague assertions of his belief in democracy and his resistance
to communism, and the IJ expressed disbelief that Huang was so
vocal about his political views while a member of the army. The IJ
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also noted that Huang failed to provide any details regarding the
circumstances of his alleged beating or the incidents regarding the
spraying of feces. Moreover, despite Huang's assertions of living
in constant fear, he appears to have lived rather freely during the
twenty years following his leaving the army. He was able to have
a family, work in his father's store, and leave the country with a
government-issued passport and visa. When questioned about his
life during those twenty years, Huang testified inconsistently and
with a high degree of vagueness. For example, with respect to his
employment during that time, he first stated that he was limited to
agricultural work, but then admitted that he worked for his father
and averred in his written application that he was a merchant. At
his hearing, he then denied being a merchant. Upon review, we
conclude that the IJ's adverse credibility determination is
supported by the record.
The IJ concluded that even if Huang had testified
credibly, none of his allegations rise to the level of persecution.
We agree. As we have often stated in the course of these cases,
determining whether alleged incidents rise to the level of
persecution requires some evidence that the mistreatment is
"systematic rather than reflective of a series of isolated
incidents." Bocova v. Gonzáles, 412 F.3d 257, 263 (1st Cir. 2005)
(citing In re O-Z & I-Z, 22 I. & N. Dec. 23, 26 (BIA 1998)).
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Substantial evidence supports the IJ's conclusions that
the events testified to by Huang were not sufficient to support a
claim of past persecution. Even if he had been arrested and taken
into custody by the police at his family's grocery store, Huang
fails to present evidence to support his assertion that it was in
retaliation for his political opinions. He avers that the actions
were predicated on that basis, yet provides no evidence in support
of his claim. Indeed, he admitted that the police arrived at the
grocery store on account of unpaid taxes and testified that his
arrests arose out of his interference with the police. Likewise,
his allegations of mistreatment while a member of the Chinese army
–- cleaning the latrine and kitchens, being beaten, and sprayed
with feces –- appear to be isolated events and not the kind of
systematic mistreatment that rises to the level of persecution.
His fears of retaliation by the Chinese army also appear to be more
akin to prosecution for desertion than persecution for his
political beliefs.
Moreover, Huang's claims of future persecution are
severely undercut by his ability to live openly in his community
for twenty years. See, e.g., Velásquez v. Ashcroft, 342 F.3d 55,
58 (1st Cir. 2003) (no well-founded fear of persecution where
petitioners remained in the country for eight years after the
alleged persecution), abrogated on other grounds by Bocova, 412
F.3d at 265 n.2. Furthermore, he provides no evidence that either
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he or his father was harassed by the Chinese government after the
two incidents at the grocery store in 1979. See Boukhtouchen v.
Gonzáles, 498 F.3d 78, 81 n.3 (1st Cir. 2007) (finding that the
reasonableness of a petitioner's fear of future persecution is
reduced where members of his family continue to reside there
without incident). Huang testified that he was able to marry, have
a child, work at his father's grocery store, apply for a passport,
and leave the country unimpeded even through the Chinese
immigration proceedings. His ability to do all of those things
provides ample support for the IJ's conclusion that Huang lacks a
well-founded fear of future persecution. See, e.g., Kheireddine v.
Gonzáles, 427 F.3d 80, 87 (1st Cir. 2005) (petitioners' ability to
obtain passports in their own names "undercuts their claim of
persecution").
Accordingly, we deny the petition for review and affirm
the decision of the BIA.
DENIED.
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