21-6536

Gong v. Garland

BIA

Laforest, IJ

A206 302 915

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY 

ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF 

APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY 

ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL 

APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY 

CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY 

COUNSEL.

At a stated term of the United States Court of Appeals for the Second 

Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley 

Square, in the City of New York, on the 27th day of February, two thousand

twenty-four.

PRESENT:

JOSEPH F. BIANCO,

STEVEN J. MENASHI,

ALISON J. NATHAN,

Circuit Judges.

_____________________________________

LING GONG,

Petitioner,

v. 21-6536

NAC

MERRICK B. GARLAND, UNITED 

STATES ATTORNEY GENERAL,

Respondent.

_____________________________________

FOR PETITIONER: Gary J. Yerman, Esq., New York, NY.
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FOR RESPONDENT: Brian Boynton, Principal Deputy Assistant

Attorney General; Anthony P. Nicastro, 

Assistant Director; Ilana J. Snyder, Trial 

Attorney, Office of Immigration Litigation, 

United States Department of Justice, 

Washington, DC.

UPON DUE CONSIDERATION of this petition for review of a Board of 

Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND 

DECREED that the petition for review is DENIED.

Petitioner Ling Gong, a native and citizen of the People’s Republic of China, 

seeks review of an August 30, 2021, decision of the BIA denying his motion to 

remand and reversing an Immigration Judge’s (“IJ’s”) October 30, 2018 grant of 

withholding of removal. In re Ling Gong, No. A 206 302 915 (B.I.A. Aug. 30, 2021), 

rev’g in part No. A 206 302 915 (Immig. Ct. N.Y. City Oct. 30, 2018). We assume 

the parties’ familiarity with the underlying facts and procedural history.

We have considered the IJ’s decision as modified and supplemented by the 

BIA. See Xue Hong Yang v. U.S. Dep’t of Just., 426 F.3d 520, 522 (2d Cir. 2005); Yan 

Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). We review factual findings for 

substantial evidence and questions of law de novo. See Wei Sun v. Sessions, 883 

F.3d 23, 27 (2d Cir. 2018). Because Gong did not appeal the IJ’s denial of asylum 

and Convention Against Torture relief, we have considered only the BIA’s reversal 
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of the IJ’s grant of withholding of removal and the BIA’s denial of his motion to 

remand. See 8 U.S.C. § 1252(d)(1) (requiring petitioner to “exhaust[] all 

administrative remedies available . . . as of right”); Santos-Zacaria v. Garland, 143 S. 

Ct. 1103, 1112, 1116 (2023) (holding that this exhaustion requirement is not 

jurisdictional, but is a “claim-processing rule” subject to “waiver and forfeiture”); 

Donnelly v. CARRP, 37 F.4th 44, 57 (2d Cir. 2022) (explaining that when the 

government has properly raised a failure to comply with a statutory exhaustion 

rule, the “rule must be enforced”).

I. Withholding of Removal

The BIA reversed the IJ’s grant of withholding of removal because, as with 

asylum, there is a statutory bar to relief if “there are serious reasons to believe [an 

applicant] committed a serious nonpolitical crime outside the United States.” 

8 U.S.C. § 1231(b)(3)(B)(iii). An Interpol Red Notice reflected that Gong was 

wanted in China for contract fraud, and Gong’s evidence confirmed that there 

were pending charges involving a fraudulent contract or misappropriation of 

funds. Certif. Admin. Record at 204–05, 230, 237. Gong’s bases for challenging 

the BIA’s denial of withholding are not properly before us because (1) our review 

is limited to “the administrative record on which the order of removal is based,” 
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8 U.S.C. § 1252(b)(4)(A), so we cannot consider his new assertion that the Interpol 

notice has been taken down and (2) he did not exhaust his argument that the 

agency found he was wanted for “embezzlement” not “contract fraud” and the 

Government has not waived the exhaustion requirement, see Donnelly, 37 F.4th at 

55–56.

Even if we were to consider his arguments, the BIA did not err in reversing 

the grant of withholding of removal. An applicant is barred from withholding of 

removal if “there are serious reasons to believe that [he] committed a serious 

nonpolitical crime outside the United States” before arriving in the United States. 

8 U.S.C. § 1231(b)(3)(B)(iii). The “serious reasons to believe” standard is the 

equivalent of “probable cause” and, if the Government meets this burden, the 

burden shifts to the applicant to establish by a preponderance of evidence that the 

mandatory bar does not apply. Khouzam v. Ashcroft, 361 F.3d 161, 165 (2d Cir. 

2004) (equating “serious reasons to believe” with “probable cause”); see also 

8 C.F.R. § 1208.16(d)(2) (outlining burden shifting). The Supreme Court has 

indicated that robbery, embezzlement, and fraud are examples of serious 

nonpolitical crimes. See Kenyeres v. Ashcroft, 538 U.S. 1301, 1306 (2003) 

(concluding that a record with evidence of “serious financial crimes,” including
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embezzlement, fraud, and money laundering supported IJ’s finding that there was 

reason to believe the petitioner had committed a serious nonpolitical offense). 

The length of the sentence to be imposed also indicates the seriousness of the 

crime. Matter of W-E-R-B-, 27 I. & N. Dec. 795, 801 (B.I.A. 2020) (finding that a 

maximum term of nine years indicated that the crime charge was serious). 

Further, an active Interpol Red Notice with the biographical details of the 

applicant indicates there are “serious reasons for believing” the applicant has 

committed the crime. Id. at 797–98.

The agency considered an Interpol Red Notice that Gong was charged with 

“contract fraud,” with a maximum penalty of life imprisonment and identified 

Gong by his photographs, place and date of birth, and passport number. Gong 

presented a letter from an attorney in China confirming the pending charges.

Accordingly, the agency had evidence to find probable cause that Gong had 

committed a crime before entering the United States and that it was serious 

because it involved fraud and carried a maximum penalty of life imprisonment. 

See Kenyeres, 538 U.S. at 1306; Matter of W-E-R-B-, 27 I. & N. Dec. at 797–98. Gong 

did not meaningfully refute these findings, and his arguments here that the agency 

erred by calling his crime “embezzlement” or that the Interpol notice has been 
6

taken down lack merits because the IJ characterized his crime as “business fraud” 

and lack of publication on Interpol’s website does not indicate that a notice is not 

active. See Interpol, View Red Notices, https://www.interpol.int/en/How-wework/Notices/Red-Notices/View-Red-Notices (“Extracts of Red Notices are 

published at the request of the member country concerned and where the public’s 

help may be needed to locate an individual or if the individual may pose a threat 

to public safety.”).

II. Motion to Remand

We review the BIA’s denial of a motion to remand for abuse of discretion. 

Li Yong Cao v. U.S. Dep’t of Just., 421 F.3d 149, 157 (2d Cir. 2005) (quotation marks 

omitted). An abuse of discretion is found when the BIA provides “no rational 

explanation” or acts “in an arbitrary or capricious manner.” Id. at 157 (quotation 

marks omitted). 

On appeal, Gong submitted a notarial certificate stating that he had no 

criminal record in China up until November 9, 2018, and two news articles alleging 

that China abuses the Interpol notice procedure. He argued that the certificate 

reduced the weight of the 2015 Interpol notice. However, the BIA did not abuse 

its discretion in declining to credit that certificate because a statement that Gong
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had no criminal record does not establish that the charges were no longer pending. 

See Xiao Ji Chen v. U.S. Dep’t of Just., 471 F.3d 315, 342 (2d Cir. 2006) (holding that 

the “weight to afford . . . evidence lies largely within the discretion of the [agency]” 

(quotation marks and brackets omitted)). The BIA also considered the articles, 

but reasonably concluded they were insufficient to overcome the reliability of the 

Interpol notice, particularly as Gong’s attorney verified the pending charges. 

Matter of W-E-R-B-, 27 I. & N. Dec. at 798 (discussing Interpol Red Notice process).

For the foregoing reasons, the petition for review is DENIED. All pending 

motions and applications are DENIED and stays VACATED.

FOR THE COURT: 

Catherine O’Hagan Wolfe,

Clerk of Court