Zhenguo Huang v. ATTORNEY GENERAL OF THE UNITED STATES On

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-1624
___________
ZHENGUO HUANG,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A095-697-033)
Immigration Judge: Honorable Miriam K. Mills
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
February 23, 2010
Before: MCKEE, HARDIMAN and COWEN, Circuit Judges
(Opinion filed : March 3, 2010)
_________
OPINION
_________
PER CURIAM
Zhenguo Huang petitions for review of the Board of Immigration Appeals’
(“BIA”) February 20, 2009 decision denying his motion to reopen his removal

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Huang’s counsel requested that the BIA construe the motion as timely filed,1
averring that the delay in filing the motion was due to an error made by his assistant.
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proceedings. For the reasons that follow, we will deny the petition.
I.
Huang, a native and citizen of the People’s Republic of China, entered the United
States in October 2004. A few days after his arrival, he was placed in removal
proceedings for having entered the United States without being admitted or paroled. He
conceded removability and, in September 2005, applied for asylum, withholding of
removal, and relief under the Convention Against Torture (“CAT”). In support of his
application, he argued that he feared returning to China because, in 2003, he got into an
altercation with village officials when they came to his house to forcibly abort his
mother’s pregnancy. After a hearing on the merits, the Immigration Judge (“IJ”) denied
Huang’s application in June 2006. The BIA affirmed on appeal in May 2008, and Huang
did not petition this Court to review the BIA’s decision.
In September 2008, more than ninety days after the BIA’s decision, Huang moved
the BIA to reopen his removal proceedings based on a new claim for relief. He alleged1
that, in 2007, he began practicing Falun Gong and participating in protests and rallies in
support of Falun Gong. He claimed that visitors from China saw him participating in a
Falun Gong demonstration in New York City and later informed officials in his home
village in China. In the summer of 2008, the Village Committee from his village issued a

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We have jurisdiction over Huang’s petition pursuant to 8 U.S.C. § 1252(a)(1).2
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warning notice to his parents, ordering Huang to stop practicing Falun Gong and return to
China to “accept punishment.” (Admin Rec. at 47.)
In February 2009, the BIA denied Huang’s motion to reopen. The BIA, which
assumed without deciding that Huang’s motion was timely, held that he had failed to
make a prima facie showing that he was entitled to relief. The BIA concluded that the
warning notice’s reference to “punishment” was vague, and that the other materials
submitted by Huang failed to “provide any reasonably specific information that this
particular respondent would suffer any harm that would rise to the level of persecution or
torture upon his repatriation.” (BIA Decision at 2.) The BIA also noted that Huang had
failed to demonstrate that the Village Committee had authority to discipline individuals
suspected of practicing Falun Gong. Huang now petitions this Court to review this most
recent BIA decision.2
II.
In a motion to reopen, an alien must make a prima facie showing that he is entitled
to asylum or similar relief. See Guo v. Ashcroft, 386 F.3d 556, 563 (3d Cir. 2004);
Sevoian v. Ashcroft, 290 F.3d 166, 175 (3d Cir. 2002). That is, he must “produce
objective evidence showing a reasonable likelihood that he can establish [that he is
entitled to relief].” Sevoian, 290 F.3d at 175 (internal quotation marks and citation
omitted). When the BIA concludes that an alien has failed to make a prima facie

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showing, we review the BIA’s findings of fact for substantial evidence and the BIA’s
ultimate decision to deny the motion to reopen for abuse of discretion. Id. at 174. Under
the substantial evidence standard, we must uphold the BIA’s factual findings, including
conclusions regarding evidence of persecution, “‘unless the evidence not only supports a
contrary conclusion, but compels it.’” Wong v. Att’y Gen. of the U.S., 539 F.3d 225, 230
(3d Cir. 2008) (quoting Abdille v. Ashcroft, 242 F.3d 477, 484 (3d Cir. 2001)). Under
the abuse of discretion standard, we must uphold the BIA’s ultimate decision unless it is
“‘arbitrary, irrational, or contrary to law.’” Sevoian, 290 F.3d at 174 (quoting Tipu v.
INS, 20 F.3d 580, 582 (3d Cir. 1994)).
The BIA did not abuse its discretion in denying Huang’s motion to reopen. The
substantial evidence supports the BIA’s finding that the materials submitted in support of
the motion failed to “provide any reasonably specific indication that this particular
respondent would suffer any harm that would rise to the level of persecution or torture
upon his repatriation.” The Village Committee’s warning notice stated merely that Huang
would face “punishment” and that he would be arrested if he did not return to China to
accept such punishment. Moreover, although Huang’s mother’s affidavit averred that he
would be “jailed,” she did not provide any detail indicating that the Chinese government’s
alleged future conduct would rise to the level of persecution or torture. See Fatin v. INS,
12 F.3d 1233, 1240 (3d Cir. 1993) (stating that “the concept of persecution does not
encompass all treatment that our society regards as unfair, unjust, or even unlawful or

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unconstitutional”).
Although the U.S. State Department’s 2007 Profile on China referenced reports
that some Falun Gong practitioners have been “confined in reeducation-through-labor
camps and high-security psychiatric hospitals for the criminally insane,” (Admin. Rec. at
68), the record here does not suggest, let alone compel, a finding that Huang himself
might suffer such a fate. Indeed, as the BIA observed, there is doubt as to whether the
Village Committee would even have the authority to punish him. An appendix to the
Profile concerning China’s family planning policies described a villagers’ committee as
“an autonomous society composed of villagers” that “does not have the right to make
decisions on family planning disposition.” (Id. at 119.) Huang did not establish that a
villagers’ committee should be viewed differently here.
In light of the above, we will deny Huang’s petition for review.

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