12-1277 

Dong v. Holder 

 BIA

Ferris, IJ

A097 958 279

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

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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 24th day of June, two thousand thirteen.

PRESENT:

DENNIS JACOBS,

Chief Judge,

JON O. NEWMAN,

DEBRA ANN LIVINGSTON,

Circuit Judges. 

_____________________________________

QIJIN DONG, AKA MICHAEL CHAN,

Petitioner, 

 v. 12-1277

NAC 

ERIC H. HOLDER, JR., UNITED STATES

ATTORNEY GENERAL,

Respondent.

_____________________________________

FOR PETITIONER: Cora J. Chang, New York, New York.

FOR RESPONDENT: Stuart F. Delery, Acting Assistant

Attorney General; Ada E. Bosque,

Senior Litigation Counsel; Flor M.

Suarez, Trial Attorney, Office of
Immigration Litigation, United

States Department of Justice,

Washington, D.C.

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.

Qijin Dong, a native and citizen of China, seeks review

of a March 7, 2012, decision of the BIA affirming the

February 1, 2010, decision of Immigration Judge (“IJ”) Noel

Ferris, finding that he had filed a frivolous asylum

application, and failed to meet his burden of proof for

withholding of removal and for relief under the Convention

Against Torture (“CAT”). In re Qijin Dong, No. A097 958 279

(B.I.A. Mar. 7, 2012), aff’g No. A097 958 279 (Immig. Ct.

N.Y. City Feb. 1, 2010). We assume the parties’ familiarity

with the underlying facts and procedural history in this

case.

Under the circumstances of this case, we have reviewed

the IJ’s decision including the portions not explicitly

discussed by the BIA. See Yun-Zui Guan v. Gonzales, 432

F.3d 391, 394 (2d Cir. 2005). The applicable standards of

review are well-established. See 8 U.S.C. § 1252(b)(4)(B);

Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

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I. Asylum

In making a frivolousness determination, an IJ must:

(1) give notice to the alien of the consequences of filing a

frivolous application; (2) make a specific finding that the

alien knowingly filed a frivolous application; (3) identify

sufficient evidence in the record to support the finding

that a material element of the asylum application was

deliberately fabricated; and (4) allow the alien sufficient

opportunity to account for any discrepancies or implausible

aspects of the claim. Mei Juan Zheng v. Mukasey, 514 F.3d

176, 180 (2d Cir. 2008) (citing Matter of Y-L-, 24 I&N Dec.

151, 155 (BIA 2007)). An asylum application may be found

frivolous once it is filed, and subsequent withdrawal of the

application does not negate such a finding. See Mei Juan

Zheng v. Holder, 672 F.3d 178, 184-85 (2d Cir. 2012). 

Dong has failed to show any error in the agency’s

frivolousness finding. As to the first procedural

requirement for making such findings, the IJ properly read

Dong the warnings, and Dong affirmed that his application

was true and that he wanted to submit it to the court. See

Mei Juan Zheng, 514 F.3d at 180. In compliance with the

second requirement, the IJ made a specific finding of

frivolousness. Id. 

3
 As to the third requirement, Dong argues that the IJ

failed to find a material element of his second asylum

application fabricated as required to deny his asylum claim

raised therein. However, the IJ may “enter frivolousness

findings on any filed application, regardless of whether it

has been withdrawn,” Mei Juan Zheng, 672 F.3d at 182

(emphasis added); see also Matter of X-M-C-, 25 I&N Dec.

322, 325 n.3 (BIA 2010) (“[The IJ is not limited] to

considering the frivolousness of only new or currently

pending asylum applications.”), and such a finding renders

the applicant permanently ineligible for asylum, see

8 U.S.C. § 1158(d)(6). As the IJ reasonably found that

material elements of Dong’s first asylum application were

deliberately fabricated, the IJ did not err in making a

frivolousness finding and further was not required to make

such a finding as to Dong’s second application in order to

find him ineligible for asylum on the bases raised therein.

See Biao Yang v. Gonzales, 496 F.3d 268, 277 (2d Cir. 2007);

see also 8 U.S.C. § 1158(d)(6). 

 As to the last factor, Dong argues that the IJ did not

properly consider his explanation that the person who

smuggled him into the United States coerced him into making

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the false claim in his first application. However, the IJ

reasonably considered and rejected Dong’s explanation

because Dong continued to pursue the false claim for more

than one year after being smuggled into the country and

admitted that he would have continued to pursue it absent

the advice of his second attorney. See Mei Juan Zheng, 514

F.3d at 180; Matter of B-Y-, 25 I&N Dec. 236, 240 (BIA

2010). Because the agency followed the proper procedural

safeguards and reasonably found that Dong deliberately

fabricated a material element of his first asylum

application, there is no error in the frivolousness finding. 

See Mei Juan Zheng, 672 F.3d at 184; see also Y-L-, 24 I&N

Dec. at 155. 

II. Withholding of Removal and CAT

A frivolous asylum application finding does not

preclude an alien from applying for withholding of removal

under either 8 U.S.C. § 1231(b)(3) or the CAT. See 8 C.F.R.

§ 1208.20. In this case, the agency did not err in finding

that Dong did not state a claim for such relief. 

The agency reasonably concluded that Dong’s alleged

fear of harm under China’s coercive population control

policy was speculative, as he had not violated the policy

and the sole basis for his fear was his mother’s purported

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forced sterilization. See Jian Hui Shao v. Mukasey, 546

F.3d 138, 143 (2d Cir. 2008); see also Jian Xing Huang v.

U.S. INS, 421 F.3d 125, 129 (2d Cir. 2005); Shao Yan Chen v.

U.S. Dep’t of Justice, 417 F.3d 303, 305 (2d Cir. 2005). 

The agency also did not err in finding that Dong failed to

demonstrate that Chinese officials were likely to persecute

and torture him upon repatriation based on a suspicion that

he had departed China illegally, particularly when he

admitted that he left the country legally and he did not

submit evidence demonstrating that similarly situated

individuals face harm. See Saleh v. U.S. Dep't of Justice,

962 F.2d 234, 239 (2d Cir. 1992) (“punishment for violation

of a generally applicable criminal law is not persecution”);

see also Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d

156, 160 (2d Cir. 2005) (holding that a petitioner is not

“entitled to CAT protection based solely on the fact that he

is part of the large class of persons who have illegally

departed China.”). 

 For the foregoing reasons, the petition for review is

DENIED. As we have completed our review, any stay of

removal that the Court previously granted in this petition

is VACATED, and any pending motion for a stay of removal in

this petition is DISMISSED as moot. Any pending request for

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oral argument in this petition is DENIED in accordance with

Federal Rule of Appellate Procedure 34(a)(2), and Second

Circuit Local Rule 34.1(b). 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk

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