Hsiao T. Huang v. Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 08-3624
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HSIAO T. HUANG,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A98-215-680
(U.S. Immigration Judge: Honorable Miriam K. Mills)
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 24, 2009
Before: SCIRICA, Chief Judge, CHAGARES and ALDISERT, Circuit Judges
(Filed : October 1, 2009)
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OPINION OF THE COURT
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PER CURIAM.
Hsaio T. Huang is a native and citizen of the People’s Republic of China who
entered the United States without inspection on August 11, 2004. He was placed in
removal proceedings for entering the United States without valid entry documents

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Huang testified at the removal hearing that he did not practice Falun Gong while1
he was in China, but that his sister did. In 1999, when the Chinese authorities began to
crack down on the Falun Gong movement, Huang’s sister and her fellow practitioners
practiced Falun Gong at his house while he stood guard. She fled China in 2000; she now
lives somewhere in Canada. Huang was told by a woman in the village that the
authorities were looking to detain him for questioning about his sister. In March 2000,
the authorities came to his family’s house (where he lived), while he was there. His
mother talked in a loud voice to the officer, so that Huang would know to hide. After this
incident, Huang called his aunt in New York City and requested her financial help in
smuggling him out of the country. He denied any physical harm at the hands of the
Chinese authorities while he was in China. When he was freed from detainment in San
Diego, he moved to New York where he lived with his aunt and her family. In 2006, he
started practicing Falun Gong regularly at his aunt’s house. He moved to Philadelphia
sometime in 2006.
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pursuant to INA § 212(a)(7)(A)(i)(1). He conceded removability and applied for asylum,
withholding of removal, and relief under the Convention Against Torture (CAT),
claiming that he had a well-founded fear that, if he returned to China, he would be
persecuted if he practiced Falun Gong and he would be persecuted and questioned about
his association with his sister, a senior Falun Gong practitioner who left China in 2000.
After a hearing, the IJ found Huang to be incredible, denied all relief, and ordered
him removed to China. Among other things, the immigration judge found it implausible
that Huang could not obtain corroborating documentation of his Falun Gong practice
from his sister or his mother. The IJ also determined that, even if Huang was credible,1
there was no evidence of past persecution and Huang failed to demonstrate a reasonable
fear of future persecution based on his sister’s practice of Falun Gong. The BIA affirmed

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the IJ’s decision and dismissed the appeal on March 11, 2008. Huang did not file a
petition for review.
On April 9, 2008, Huang filed a motion to reopen accompanied by a letter from his
mother dated March 26, 2008, and copies of two summonses indicating that “The Public
Security Bureau of Lianjiang County of Fujian Province” required the attendance of
Huang and his sister “for investigation” at the Bureau on March 24, 2008. In her letter,
Huang’s mother stated that her previous letters to the IJ could not be delivered to the
United States because they got lost or were confiscated by Chinese authorities. She stated
that the Chinese authorities typically investigated Falun Gong members “[e]very New
Year.” She said that when Huang and his sister were still in China, two village cadres
and a local police officer came to her home regularly to speak to Huang’s sister, and that
in 2000, they wanted to question Huang about his sister. According to Huang’s mother,
after Huang and his sister fled, the police come to her home looking for Huang and his
sister “every another period of time.” On March 21, 2008, two policemen came to her
house and left summonses for Huang and his sister. She said that Huang would suffer
persecution and would be jailed if he returned to China.
The BIA denied the motion to reopen, holding that Huang failed to show that a
letter from his mother was not available prior to his hearing in 2007. The Board found
inconsistencies in the mother’s letter, Huang’s affidavit accompanying his motion to
reopen, and his hearing testimony, which undermined his claim that information from his

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mother corroborating his claim could not have been submitted in the removal
proceedings. Specifically, the Board noted that both Huang’ s affidavit in support of his
motion to reopen and his mother’s letter indicated that she had written more than one
letter to the immigration court and that Huang did not receive them possibly because the
letters were lost or confiscated by Chinese authorities. At his removal hearing, however,
Huang testified that his mother sent only one letter, addressed to Huang, which he did not
receive because he had moved to another city. The Board further noted that, according to
Huang’s hearing testimony, he was in telephone contact with his mother, and, thus, he
could have obtained a letter from her prior to his hearing.
As for the merits of the motion to reopen, the BIA ruled that Huang failed to show
prima facie eligibility for asylum or other relief. The Board determined that the mother’s
letter was entitled to little weight as corroborating evidence because it was “vague and
self-serving” about the visits by local police to her home after Huang and his sister fled,
and because the letter contradicted Huang’s hearing testimony. In particular, the Board
noted that Huang testified to only one visit to his home by local Chinese authorities in
2000; he made no mention of the visits by local police officers that his mother reported
had occurred after Huang and his sister fled China. The BIA observed that the public
summonses dated March 21, 2008, were unauthenticated and were otherwise lacking any
indicia of reliability. The Board held that, even assuming the authenticity and reliability
of the summonses, the fact that Huang was wanted for questioning did not amount to

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persecution as that term is defined under immigration law. Huang filed this timely
petition for review.
The only issue before us is the BIA’s order, entered on July 30, 2008, denying
Huang’s motion to reopen. We have jurisdiction under 8 U.S.C. § 1252(a) to review the
BIA’s denial of a motion to reopen. We review the BIA’s denial of the motion on the
ground that no new evidence was presented for abuse of discretion. Sevoian v. Ashcroft,
290 F.3d 166, 170 (3d Cir. 2002). As for the BIA’s denial of the motion on the ground
that Huang failed to make a prima facie case for relief, we review the Board’s findings of
fact for substantial evidence and its ultimate decision to deny the motion under the
deferential abuse of discretion standard. Id.; see also Liu v. Att’y Gen., 555 F.3d 145,
148 (3d Cir. 2009). AN abuse of discretion exists if the BIA’s decision is “arbitrary,
irrational, or contrary to law.” Sevoian, 290 F.3d at 174.
“There are both procedural and substantive hurdles that must be overcome in a
motion to reopen removal proceedings.” Shardar v. Attorney General, 503 F.3d 308, 313
(3d Cir. 2007). Procedurally, motions to reopen generally must be filed within 90 days of
the final administrative decision unless, inter alia, the motion is based on “‘changed
circumstances arising in the country of nationality . . . if such evidence is material and
was not available and could not have been discovered or presented at the previous
hearing[.]’” Id. (quoting 8 C.F.R. § 1003.2(c)(3)(ii)). If the procedural hurdle is cleared,
the question becomes one of substance—whether the petitioner has shown prima facie

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eligibility for the requested relief. See id. That standard requires a petitioner to show a
“reasonable likelihood” of ultimately prevailing on his claims. Guo v. Ashcroft, 386 F.3d
556, 563 (3d Cir. 2004).
Huang argues that he presented previously unavailable, material evidence of
ongoing persecution of Falun Gong members by local police and, in particular, of an
investigation targeting him and his sister, which was initiated by Chinese authorities in
March 2008, after his removal hearing had concluded. He asserts that the Board failed to
give proper weight to the mother’s letter concerning the police visit in March 2008,
because it was based on the erroneous conclusion that Huang’s mother did not explain
why Chinese authorities were still investigating Huang’s sister more than eight years after
she left the country. In support of his argument, Huang points to his mother’s explanation
that investigations of suspected Falun Gong members typically occurred every Chinese
New Year.
After careful consideration of Huang’s arguments on appeal, we conclude that the
BIA did not abuse its discretion in finding that the mother’s letter presented evidence that
was not “new.” As the Board noted, Huang could have discovered most of the
information contained in his mother’s letter prior to his removal hearing. 8 C.F.R. §
1003.2(c)(1). For instance, he could have learned through phone calls with his mother
that Chinese authorities were conducting yearly investigations of Falun Gong members

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and coming to the mother’s house looking for them, in particular, “every another period
of time.”
The summonses and the information in the mother’s letter about the March 2008
police visit were not available before the hearing and, thus, the evidence is newly
discovered. We conclude, however, that substantial evidence supports the BIA’s finding
that Huang failed to demonstrate a reasonable likelihood that this new evidence would
result in eligibility for relief. Huang’s new claim that Chinese authorities were interested
in questioning him in March 2008 is linked to his original asylum claim that he would be
persecuted by Chinese authorities if he practiced Falun Gong there, a claim that was
rejected by the IJ and the BIA as incredible. Huang contends that the BIA erred in
finding that the summonses were entitled to little or no weight because they were not
properly authenticated pursuant to 8 C.F.R. § 287.6, and erred in failing to give his
mother’s letter proper weight. As for the lack of authentication, Huang correctly notes
that § 287.6 is not an absolute rule of exclusion. See Liu v. Ashcroft, 372 F.3d 529, 533
(3d Cir. 2004). Here, however, the Board did not decide the case entirely on the
conclusion that the evidence was unauthenticated. Rather, the Board also held in the
alternative that, even if the summonses were genuine, Huang had not demonstrated a
reasonable likelihood that he would be entitled to relief based on the new evidence. We
find that there was substantial evidence to support the BIA’s conclusion that the
summonses for an investigation — the focus of which was not revealed — and Huang’s

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mother’s information about her March 2008 encounter with Chinese authorities do not
constitute persecution for asylum purposes, as the evidence does not suggest a reasonable
likelihood of “threats to life, confinement, torture, [or] economic sanctions so severe that
they constitute a threat to life or freedom.” Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir.
1993). Thus, we conclude that the BIA did not abuse its discretion in denying Huang’s
motion to reopen.
Accordingly, we will deny the petition for review.

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