Tuan Dong Yong v. Gonzales , 158 F. App'x 403 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-2525
TUAN DONG YONG,
Petitioner,
versus
ALBERTO R. GONZALES, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals. (A77-641-908)
Submitted: October 26, 2005 Decided: November 21, 2005
Before WIDENER, TRAXLER, and DUNCAN, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Hanbin Wang, New York, New York, for Petitioner. Peter D. Keisler,
Assistant Attorney General, M. Jocelyn Lopez Wright, Dennis J.
Dimsey, Lisa Wilson Edwards, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Tuan Dong Yong, a native and citizen of the People’s
Republic of China (“PRC”), petitions for review of an order of the
Board of Immigration Appeals (Board) affirming the immigration
judge's order denying his applications for asylum, withholding of
removal, and protection under the Convention Against Torture (CAT).
We deny the petition for review.
Yong does not challenge the immigration judge’s denial of
his asylum application as untimely. See United States v. Al-Hamdi,
356 F.3d 564, 571 n.8 (4th Cir. 2004) (stating that issue not
raised on appeal is waived); Edwards v. City of Goldsboro, 178 F.3d
231, 241 n.6 (4th Cir. 1999) (same). Yong’s appeal is therefore
limited to the denial of his application for withholding of removal
and protection under the CAT.
To establish eligibility for withholding of removal, an
alien must show a clear probability that if he was removed to his
native country, his “life or freedom would be threatened” on a
protected ground. 8 U.S.C. § 1231(b)(3)(A) (2000); see Camara v.
Ashcroft, 378 F.3d 361, 370 (4th Cir. 2004). A “clear probability”
means it is more likely than not the alien would be subject to
persecution. INS v. Stevic, 467 U.S. 407, 429-30 (1984). “The
burden of proof is on the applicant for withholding of removal
. . . to establish that his or her life or freedom would be
threatened in the proposed country of removal” on account of a
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protected ground. 8 C.F.R. § 1208.16(b) (2005). A showing of past
threat to life or freedom on such a ground creates a rebuttable
presumption that the threat would recur upon removal. 8 C.F.R.
§ 1208.16(b)(1)(i); Camara, 378 F.3d at 370. Withholding of
removal is mandatory if the alien meets the standard of proof.
Stevic, 467 U.S. at 429-30.
Furthermore, to qualify for protection under the
Convention Against Torture, a petitioner bears the burden of
demonstrating that “it is more likely than not that he or she would
be tortured if removed to the proposed country of removal.” 8
C.F.R. § 1208.16(c)(2) (2005). “[An] applicant need not prove the
reason for the torture, nor that she has a well-founded fear of it
. . . .” Camara, 378 F.3d at 371.
We find that substantial evidence supports the Board’s
ruling that Yong failed to prove he is eligible for mandatory
withholding of removal or protection under the CAT, and Yong fails
to show that his evidence compels a contrary result. For example,
Yong claimed his wife had a forced abortion, but the abortion
certificate submitted to corroborate that claim establishes only
that his wife had an abortion, not that it was forced. Moreover,
Yong submitted no declaration or affidavit from his wife
corroborating his story and the circumstances of his departure.
Nor were any similar statements provided by Yong’s parents, with
whom Yong, his wife, and his son apparently live. The immigration
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judge properly concluded that this corroborating evidence is
available and should have been submitted by Yong.
The immigration judge also had before him the State
Department’s 2002 Country Report for China. The 2002 Report
reflects that in September 2002, following Yong’s wife’s alleged
forced abortion in 1999, the PRC enacted a new law that prohibited
forced abortions and sterilizations. Under the new law, local
officials are prohibited from employing forced procedures, and
instead, administer their population control policies through
“education, propaganda, and economic incentives.” We therefore
find that Yong has not shown that it is more likely than not that
he will be sterilized now. Even if Yong is subjected to additional
fines, such fines in and of themselves do not constitute
persecution. Chen v. INS, 195 F.3d 198, 204-05 (4th Cir. 1999).
Yong counters that the immigration judge’s ruling was the
result of ineffective assistance of counsel. To properly allege
such a claim, a petitioner must submit an affidavit setting forth
the relevant facts in detail, including the agreement that was
entered into with former counsel with respect to the actions to be
taken and what counsel did or did not represent to the alien in
this regard. See Matter of Lozada, 19 I. & N. Dec. 637, 639 (BIA
1988). In addition, before allegations of ineffective assistance
are presented to the Board, former counsel must be informed of the
allegations and allowed an opportunity to respond. Counsel’s
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response or his failure or refusal to respond should be submitted
with the motion. If the alien asserts that prior counsel’s
handling of his case involved a violation of ethical or legal
responsibilities, “the motion should reflect whether a complaint
has been filed with appropriate disciplinary authorities regarding
such representation, and if not, why not.” Id. Finally, a movant
must show prejudice as a result of the alleged ineffectiveness.
Rusu v. INS, 296 F.3d 316, 324 (4th Cir. 2002). We need not decide
if Lozada’s requirements were satisfied because even assuming that
they were, we would nevertheless conclude that Yong’s claim is
meritless, as, based on the 2002 Report, Yong fails to demonstrate
that he was prejudiced by his attorney’s actions.
Accordingly, we deny the petition for review. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decisional process.
PETITION DENIED
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