Dong v. Atty Gen USA

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
2-9-2007
Dong v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-4140
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007
Recommended Citation
"Dong v. Atty Gen USA" (2007). 2007 Decisions. Paper 1640.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1640
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-4140
XIAN CHUN DONG,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
Petition for Review of an Order of the
United States Department of Justice
Board of Immigration Appeals
(BIA No. A96 435 183)
Immigration Judge: Honorable Walter A. Durling
Argued January 19, 2007
Before: SLOVITER, RENDELL and CUDAHY*, Circuit Judges.
(Filed February 9, 2007)
Nicole S. Morris [ARGUED]
Dechert
2929 Arch Street
18th Floor, Cira Centre
Philadelphia, PA 19104
*Honorable Richard D. Cudahy, Senior Judge of the United States Court of Appeals for
the Eighth Circuit, sitting by designation.
Michael R. Carroll
Dechert
P.O. Box 5218
Princeton Pike Corporate Center
Princeton, NJ 08543-5218
Counsel for Petitioner
Richard M. Evans
Emily A. Radford
Allen W. Hausman
Blair T. O’Connor [ARGUED]
Patricia A. Smith
U.S. Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
OPINION OF THE COURT
RENDELL, Circuit Judge.
Xian Chun Dong petitions for review of the decision of the Board of Immigration
Appeals (“the Board”) denying his application for asylum, application for withholding of
removal under the Immigration and Nationality Act, and request for withholding of
removal under Article 3 of the Convention Against Torture.
I.
Dong, a single 17-year-old native of China, applied for asylum, withholding of
removal and protection under the Convention Against Torture after arriving in the United
States in September 2003. Dong argued that he is eligible for a grant of asylum for
2
several reasons. He alleged that he has a well founded fear that he will be persecuted if
he returns to China because he is a member of a family that has resisted China’s “one
child” policy and because the Chinese government has imputed to Dong his parents’
political opinions opposing the “one child” policy. Dong argued that his family
constitutes a persecuted “social group,” of which Dong is a member. Dong also alleged
that he has a well founded fear of persecution because he believes that, upon his return to
China, the government will arrest him for leaving the country illegally and will harm him.
At a hearing before an Immigration Judge (“IJ”), Dong presented evidence that the
Chinese government forced his mother to undergo a medical procedure to insert an IUD
in order to prevent her from having a second child, and that his father had openly
protested China’s “one child” policy and, as a result, was jailed and beaten by
government officials. Dong noted that his father became mentally ill after he was
released from jail and that his family could not afford to pay for his hospital expenses.
Dong further testified that the Chinese government seized the family’s farm and that he
and his mother were forced to work for low wages in a restaurant in order to support
themselves. Dong attended school only until his graduation from elementary school.
Dong stated at the hearing that he fears that, if returned to China, he will be detained and
beaten because he fled from his country, and noted that a child from his valley was
mistreated in this way after being sent back to China.
The IJ concluded that there was insufficient evidence in the record to substantiate
Dong’s claim that he would be persecuted in the future because of his illegal departure
3
from China. The IJ did find, however, that Dong had established his past persecution
based on the persecution of his parents for their opposition to China’s “one child” policy.
The IJ based his reasoning on the Board’s decision in Matter of CYZ, 21 I. & N. Dec. 915
(BIA 1997), in which the Board found that the past political persecution of a spouse for
her opposition to China’s “one child” policy established the other’s spouse’s past political
persecution. The IJ concluded that Dong’s parents had been persecuted based on the fact
that Dong’s family’s land was confiscated, his father was jailed and beaten in jail, and
that his father thereafter suffered from mental illness. Based on the legal determination
that Dong was able to stand “in the shoes of his parents, respectively, to qualify for
asylum,” the IJ found that Dong was eligible for a discretionary grant of asylum.
However, the IJ ultimately exercised his discretion to deny Dong asylum because
Dong used a smuggler to enter the United States, but then granted Dong’s request for
withholding of removal based on his finding that Dong had made the requisite showing of
a “clear probability” of persecution if he returned to China. The IJ did not address
Dong’s claim under the Convention Against Torture because he granted Dong’s request
for withholding of removal.
On appeal, the Board vacated the decision granting Dong’s application for
withholding of removal and affirmed, on different grounds, the denial of Dong’s
application for asylum. The Board found that Dong could not claim past political
persecution based solely on the past political persecution of his parents for their
opposition to China’s “one child” policy and that Dong had not been personally harmed
4
to a degree sufficient to establish his own past persecution. The Board also concluded
that Dong’s fear of being harmed on his return to China because he left China illegally
was not sufficient to establish his eligibility for asylum. Finding that Dong was therefore
ineligible for a discretionary grant of asylum, the Board concluded that Dong had
accordingly also failed to satisfy the higher standard required to grant withholding of
removal. The Board did not address Dong’s claim under the Convention Against Torture
because neither party appealed the IJ’s ruling on that claim.
II.
We have jurisdiction to review the Board’s decision pursuant to 8 U.S.C. §
1252(a)(1). When the Board both adopts the findings of the IJ and discusses some of the
bases for the IJ's decision, we have authority to review the decisions of both the IJ and the
Board. He Chun Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004). We treat the
Board’s findings of fact as conclusive “unless any reasonable adjudicator would be
compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). “A determination of
whether an asylum applicant has suffered from ‘persecution’ or whether that individual
has a ‘well-founded fear of persecution’ is factual and thus is entitled to deference.”
Wang v. Gonzales, 405 F.3d 134, 138 (3d Cir. 2005).
Here, the Board did not disturb the IJ’s factual findings that Dong was credible or
that Dong’s parents had been persecuted for their opposition to China’s “one child”
policy, but rejected the IJ’s conclusion that based on Matter of CYZ, 21 I. & N. Dec. 915
(BIA 1997), the past political persecution of Dong’s parents could establish Dong’s own
5
past persecution and eligibility for a grant of asylum. The Board reasoned that although
“there is no bright-line rule that persecution of parents can never b[e] regarded as
persecution of a minor child and such cases must be decided on an individual basis; [] we
do not find eligibility for relief demonstrated on this record.” The Board also found that
the harm suffered by Dong himself did not rise to the level of persecution.
We find no basis upon which to disturb the Board’s findings that Dong failed to
establish that he suffered persecution in the past, either based on his family’s past
persecution or based on the economic hardship he suffered due to the Chinese
government’s actions. We have previously upheld the Board’s conclusion that “refugee,”
as defined in 8 U.S.C. 1101(a)(42), does not necessarily include the child of a person
deemed to have suffered past persecution because he or she violated or resisted China’s
family planning policies. See Wang, 405 F.3d at 142-43 (upholding Board’s
determination that child petitioner, who alleged past persecution based on the forced
sterilization of his mother as well as based on other government action against his family,
was not eligible for asylum based on his family’s past political persecution). Nothing
about the particular circumstances of this case compels us to view Dong’s situation as
materially different from that of the petitioner in Wang such that we would conclude that
Dong can claim asylum based on the persecution of his parents.
Nor do we find any basis to disturb the Board’s finding that the harm personally
suffered by Dong was not so severe as to rise to the level of persecution. Although we
6
have held that “the deliberate imposition of severe economic disadvantage which
threatens a petitioner’s life or freedom may constitute persecution,” Li v. Attorney
General, 400 F.3d 157, 168 (3d Cir. 2005), the economic harm suffered by Dong was no
greater, and in fact seems less severe, than the harm suffered by the child petitioner in
Wang. There, we did not disturb the Board’s finding that the harm suffered by the
petitioner did not rise to the level of persecution. See id., 405 F.3d at 143-44 (refusing to
disturb the Board’s conclusion that petitioner had not established that the past harm he
experienced rose to the level of persecution even though evidence established that the
government destroyed petitioner’s family’s home, property and equipment necessary to
run the family business).
The Board did not address whether Dong was persecuted “on account of” his
membership in a particular social group because it found that the economic harm he
suffered did not rise to the level of persecution. Since we find no basis to disturb the
Board’s finding that Dong was not persecuted, we likewise need not reach the question of
whether Dong was injured “on account of” being a member of his family social group.
We also agree that Dong’s fear of being harmed for having left the country illegally does
not establish a well founded fear of persecution “on account of” one of the grounds
enumerated the statutory definition of “refugee” in the Immigration and Nationality Act.
See 8 U.S.C. § 1101(a)(42) (including in definition of “refugee” the requirement that the
alien have a well-founded fear of persecution “on account of race, religion, nationality,
membership in a particular social group, or political opinion”).
7
As for Dong’s claim for withholding of removal under the Immigration and
Nationality Act, the Board correctly concluded that, because Dong did not establish his
eligibility for a grant of asylum, he could not demonstrate his eligibility for withholding
of removal. See Janusiak v. INS, 947 F.2d 46, 47-48 (3d Cir. 1991). Finally, we do not
address Dong’s claim under the Convention Against Torture because Dong did not appeal
the IJ’s decision on this claim to the Board and therefore failed to exhaust his
administrative remedies as to this claim. See Abdulrahman v. Ashcroft, 330 F.3d 587,
594-95 (3d Cir. 2003)(“[A]n alien is required to raise and exhaust his or her remedies as
to each claim or ground for relief if he or she is to preserve the right of judicial review of
that claim.”).
IV.
For the foregoing reasons, we will deny the petition for review.
8