Ding v. Atty Gen USA

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
6-11-2009
Ding v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-2893
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-2893
___________
JIAN WEN DING,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
_________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A98-714-645
Immigration Judge: Honorable Kenneth Josephson
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 11, 2009
Before: SLOVITER, STAPLETON and COWEN, Circuit Judges
(Opinion filed June 11, 2009)
___________
OPINION
___________
PER CURIAM
Jian Wen Ding, a Chinese native and citizen, petitions for review of a final order
of the Board of Immigration Appeals (“BIA”) affirming the denial by the Immigration
Judge (“IJ”) of Ding’s application for asylum, withholding of removal and relief under
the Convention Against Torture (“CAT”). Ding, who arrived in the United States without
being admitted or paroled as required by the INA, was charged with removability under §
212(a)(6)(A)(i) of the INA. Ding conceded the charge of removability and filed the
asylum application. Before the IJ, Ding testified that he had suffered past persecution and
feared future persecution by the Chinese government as a practitioner of Falun Gong.
Ding testified that he began practicing Falun Gong after his cousin informed him that it
could be useful in treating the pain in his joints. Ding alleged that Chinese officials
arrested him twice after they discovered he was practicing Falun Gong. Ding further
alleged that the Chinese authorities physically mistreated him and, upon his release, he
received medical treatment in the form of “Chinese massage” and pain medication. The
IJ found Ding’s testimony not credible and also found that Ding failed to provide
adequate corroborating evidence to support his application. Specifically, the IJ faulted
Ding for failing to provide statements from his sister who lives in the United States or his
parents in China corroborating his practice of Falun Gong. Ding appealed to the BIA
which adopted and affirmed the IJ’s decision.
We have jurisdiction pursuant to 8 U.S.C. § 1252(a). We uphold the BIA’s
determinations if they are supported by reasonable, substantial and probative evidence on
the record considered as a whole. Yusupov v. Att’y Gen., 518 F.3d 185, 197 (3d Cir.
2008). Under the substantial evidence standard, “the BIA’s finding must be upheld
unless the evidence not only supports a contrary conclusion, but compels it.” Abdille v.
Ashcroft, 242 F.3d 477, 483-84 (3d Cir. 2001) (citing INS v. Elias-Zacarias, 502 U.S.
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478, 481 n.1 (1992)). Where the BIA substantially adopts the findings of the IJ, we
review the decisions of both the IJ and the BIA. He Chun Chen v. Ashcroft, 376 F.3d
215, 222 (3d Cir. 2004).
To be granted asylum, Ding must show that he is “unable or unwilling to return to
[China] . . . because of persecution or a well-founded fear of persecution on account of
race, religion, nationality, membership in a particular social group, or political opinion.” 8
U.S.C. § 1101(a)(42)(A); see also 8 U.S.C. § 1158(b)(1)(A). To be eligible for
withholding of removal, Ding must demonstrate that “there is a greater-than-fifty-percent
chance of persecution” in China based on one of these protected grounds. Senathirajah v.
INS, 157 F.3d 210, 215 (3d Cir. 1998); see also 8 U.S.C. § 1231(b)(3)(C). For relief
under the CAT, Ding must demonstrate that it is more likely than not that he would be
tortured if removed to China. See 8 C.F.R. § 208.16(c)(2).
The BIA’s finding that Ding’s testimony was not credible is supported by
substantial evidence. See Sukwanputra v. Gonzales, 434 F.3d 627, 636 (3d Cir. 2006) (an
adverse credibility determination is appropriately based on inconsistent statements and
contradictory evidence). Ding points out that the IJ, in making the credibility
determination, relied on inconsistencies between Ding’s initial interview with an
immigration officer and his testimony before the IJ. In that statement, Ding told the
immigration officer that he was coming to the United States to seek employment. While
we have counseled against placing too much weight on a petitioner’s interview with
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immigration authorities at the point of entry, see He Chun Chen, 376 F.3d at 223-24,
Ding’s statement does not appear to have the type of defects which make such statements
unreliable. See Balasubramanrim v. I.N.S., 143 F.3d 157, 163 (3d Cir. 1998) (airport
statement unreliable where immigrant did not have translator and the interview was not
accurately recorded.) In any event, the IJ pointed to other reasons for finding Ding’s
testimony incredible, including the lack of detail in the types of medication he received
after his arrest and the lack of work history in China. Therefore, there is substantial
evidence to support the IJ’s adverse credibility determination.
The IJ and the BIA also faulted Ding for failing to provide corroborating evidence
to support his testimony. The BIA’s rule regarding corroborating evidence contemplates
a three-part inquiry: “1) identification of the facts for which ‘it is reasonable to expect
corroboration;’ 2) an inquiry as to whether the applicant has provided information
corroborating the relevant facts; and, if [he] has not, 3) an analysis of whether the
applicant has adequately explained [his] failure to do so.” Abdulai v. Ashcroft, 239 F.3d
542, 554 (3d Cir. 2001) (citation omitted).1 Here, the IJ found it significant that Ding
failed to provide a statement corroborating his practice of Falun Gong from his sister,
who lives in the United States, or his parents, who live in China but keep in regular
1
The REAL ID Act of 2005, which applies here since Ding filed his application after
May 11, 2005, instructs courts to defer to the trier of fact’s determination on
corroborating evidence. Chukwu v. Att’y Gen., 484 F.3d 185, 192 (3d Cir. 2007). The
REAL ID Act, however, does not change our rules regarding the IJ’s duty to develop the
applicant’s testimony in accordance with the Abdulai steps. Id.
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contact with Ding. The IJ also noted that Ding failed to provide statements from doctors
who treated his medical conditions in China. While Ding provided a statement from his
cousin corroborating his practice of Falun Gong in China and the events surrounding his
two arrests in China, it was not unreasonable for the IJ and the BIA to expect Ding to
provide medical records from doctors who treated his alleged joint pain and injuries he
sustained during his arrest. Further, it was not unreasonable for the IJ and the BIA to
expect a statement from Ding’s sister, who immigrated to the United States two months
before Ding, and lived with him while he was practicing Falun Gong in China. Ding’s
explanation, that he did not know he was supposed to provide the corroborating evidence
and that Chinese doctors do not keep records, is not adequate. Ding acknowledged that
his attorney informed him to gather all available information that could be helpful to his
case. Moreover, in lieu of medical records, Ding could have obtained statements from the
doctors who treated him in China. Therefore, substantial evidence supports the IJ and
the BIA’s finding that Ding failed to provide sufficient corroborating evidence to support
his testimony.
Because Ding cannot satisfy the standard for asylum, he cannot satisfy the higher
burden of proof for withholding of removal. Janusiak v. INS, 947 F.2d 46, 47 (3d Cir.
1991). Nor does the record show that Ding would likely be tortured by or with the
acquiescence of a Chinese official. Therefore, he is not eligible for protection under the
CAT. Pierre v. Att’y Gen., 528 F.3d 180, 190 (3d Cir. 2008) (en banc).
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