2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-24-2009

Dong v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2787

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 07-2787

___________

REN DENG DONG,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A77-994-021)

Immigration Judge: Honorable Rosalind K. Malloy

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

September 9, 2009

Before: MCKEE, NYGAARD and ROTH, Circuit Judges

Opinion filed: November 24, 2009

___________

OPINION

___________

PER CURIAM

Petitioner Ren Deng Dong is a native and citizen of the People’s Republic of

China who petitions for review of the Board of Immigration Appeals’s (“BIA”) decision
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affirming a decision of the Immigration Judge (“IJ”) denying his applications for asylum,

withholding of removal, and protection under the United Nations Convention Against

Torture (“CAT”). For the following reasons, we will deny Dong’s petition for review.

I.

Dong entered the United States without inspection on November 1, 2001 and was

immediately detained. He was issued a Notice to Appear on November 8, 2001 that

charged him as being removable under 8 U.S.C. § 1182(a)(7)(A)(i)(1). Dong was

released from detention on bond on December 13, 2001. Dong thereafter conceded that

he was removable but, on December 10, 2002, filed an application for asylum,

withholding of removal, and CAT relief asserting that he had been persecuted for

opposing China’s family planning policy. 

At his merits hearing, Dong testified that on October 1, 2001, he and his fourmonth-pregnant girlfriend, Chuijin Lin, were refused a marriage certificate at their

village’s committee office because at 18 years old they were too young to marry under

Chinese law. Dong argued with the officials, who forced him out of the office and

telephoned the police, accusing Dong of assaulting them. When the police arrived and

attempted to arrest Dong, he escaped with the help of villagers. He immediately went

into hiding while Lin lived with his parents. Dong testified that while he was in hiding,

family planning officials sought to arrest him and left a fine notice at his parents’ house

charging him with failing to obtain permission to become pregnant. He testified that his
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parents paid the fine. Two weeks after the incident with the village officials, Dong was

smuggled into the United States. Upon his release from detention, Dong called Lin, who

told him that she had been forced to have an abortion. He also spoke with his parents,

who told him that the family planning officials still wanted to arrest him. He stated that

he was frightened to return to China because he “thinks [he] will have big trouble,

because they accused [him] of beating up government officials.”

Substantial problems with Dong’s testimony, affidavit, and documentation arose

on cross-examination. He testified that he and Lin were married in a traditional Chinese

ceremony, but that he did not mention this in his affidavit because he had no proof of the

marriage and because the marriage was not recognized by the Chinese government.

Additionally, he submitted an abortion certificate that listed Lin’s age as 22 although the

abortion ostensibly occurred two weeks after they had applied for a marriage license,

when they were both 18 years old. Dong suggested that this was a clerical mistake. 

Further, Dong had testified on direct examination that he and Lin applied for a marriage

certificate because she was pregnant, yet his affidavit states that they wanted to get

married simply because they were in love, and that he did not learn of Lin’s pregnancy

and abortion until after he arrived in the United States. As to the incident with the

government officials, he testified on cross-examination that the officials pushed and

dragged him out of the office after he refused to leave. When they reached the street, the

officials began beating him and he struck back. As a result, the official charges lodged
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against him were for “beating family planning officials.”

The IJ denied Dong’s application for asylum on the merits and because it was

untimely. She made an adverse credibility determination, and concluded that Dong did

not meet the standard for withholding of removal or CAT relief. The IJ explained that

Dong “absolutely failed to establish that he was persecuted on account of violating the

family planning policy” because “he did not establish that he has a wife, that she

underwent an abortion, or that she was pregnant.” The IJ further stated that based on

Dong’s own testimony, his behavior at the family planning office would make him the

subject of legitimate prosecution rather than persecution. She then held that his claim

was fraudulent, warranting a finding that his asylum application was frivolous. 

The BIA affirmed the IJ’s denial of relief, determining that the IJ offered “specific,

cogent reasons for her adverse credibility determination.” On appeal, Dong argued for

the first time that Lin’s “sterilization” was sufficient to demonstrate that he had suffered

past persecution. The BIA rejected this claim for lack of evidence and because it was the

first time that he had raised this issue. The BIA vacated the IJ’s determination that

Dong’s asylum application was frivolous.

Through counsel, Dong now petitions for review of the BIA’s final order of

removal. 

II

The government correctly argues that we lack jurisdiction to review the decision
Because Dong applied for relief before May 11, 2005, the REAL ID Act’s 1

standard governing review of adverse credibility determinations is not applicable to this

case. See Kaita, 522 F.3d at 296.

Further, we note that to the extent Dong’s claims of past persecution are 2

predicated on his relationship to Lin, his credibility and his marital status are irrelevant, as

we recently held that the Immigration and Nationality Act does not extend automatic

refugee status to unmarried partners or spouses of individuals who have been forcibly

subjected to family planning measures. See Lin-Zheng v. Att’y Gen., 557 F.3d 147, 156

(3d Cir. 2009). 

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that Dong’s asylum application was untimely. 8 U.S.C. § 1158(a)(3); see also

Sukwantputra v. Gonzales, 434 F.3d 627, 633-34 (3d Cir. 2006). We do, however, 

retain jurisdiction to review the denial of withholding of removal and CAT relief. See

Tarrawally v. Ashcroft, 338 F.3d 180, 185-86 (3d Cir. 2003). We review these decisions

under the substantial evidence standard and will uphold the BIA’s determinations “unless

the evidence not only supports a contrary conclusion, but compels it.” Zubeda v.

Ashcroft, 333 F.3d 463, 471 (3d Cir. 2003) (internal citation omitted). 

Substantial evidence supports the adverse credibility determination. See Kaita v. 1

Att’y Gen., 522 F.3d 288, 296 (3d Cir. 2008) (explaining the pre-REAL ID Act standard

of review). Dong’s hearing was marred by contradictory information regarding his

marital status, the circumstances of his altercation with family planning officials, whether

Lin was forced to have an abortion, and the reason he was being sought by the authorities. 

The BIA appropriately found that these discrepancies “support the Immigration Judge’s

adverse credibility finding.”2
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Dong may rightfully fear prosecution for allegedly beating village officials, and

fear of prosecution may constitute grounds for withholding of removal if it is motivated

by one of the enumerated factors, such as political opinion, “and if the punishment under

the law is sufficiently serious to constitute persecution.” Shardar v. Ashcroft, 382 F.3d

318, 323 (3d Cir. 2004). However, as in Shardar, substantial evidence supports the

conclusion that Dong is not being prosecuted due to his political opinion; rather, the

police are attempting to prosecute him for fighting with town officials because he argued

with them after they would not give him a marriage certificate and he refused to leave the

office. See id. at 324. Moreover, being dragged and/or pushed out of the family planning

office and subsequently beaten up by officials, although troubling, does not rise to the

level of persecution. See id. 

Finally, there is no evidence that Dong would more likely than not be tortured if he

is removed to China so as to entitle him to CAT relief. See 8 C.F.R. § 208.16(c)(2). 

For the foregoing reasons, we deny Dong’s petition for review.