                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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




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                                                              NOT PRECEDENTIAL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.




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