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Immigration Law

CA11 on China, Persecution: Huang v. Holder

"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 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 nonphysical 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. ... 

We do not opine on whether Huang’s circumstances demonstrate past persecution. But we cannot tell from the BIA’s explanation of why it denied Huang’s claim of past persecution—an explanation rooted in the BIA’s perception of the level of severity of the physical abuse to Huang — whether the BIA considered the types of religious abuse that we found to be highly relevant in Shi when it evaluated Huang’s petition. Although the BIA need not “write an exegesis on every contention[,]” Vergara-Molina v. INS, 956 F.2d 682, 685 (7th Cir. 1992) (quoting Becerra-Jimenez v. INS, 829 F.2d 996, 1000 (10th Cir. 1987)) (internal quotation marks omitted), it must nonetheless “consider the issues raised [by the applicant] and announce its decision in terms sufficient to enable a reviewing court to perceive that it has heard and thought and not merely reacted.” Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1374 (11th Cir. 2006) (quoting Vergara-Molina, 956 F.2d at 685 (quoting Becerra-Jimenez, 829 F.2d at 1000)). Error occurs if the BIA “fails to weigh important factors . . . .” Id. Here, because we cannot ascertain from the BIA’s decision whether the BIA considered the types of abuse unique to religious persecution when it denied Huang’s claim of past persecution, we remand this matter to the BIA for further proceedings consistent with this opinion.

VACATED and REMANDED for further proceedings." - Huang v. Holder, Dec. 24, 2014.  [Hats off to Oliver Huiyue Qiu!]