                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-20-2005

Dong v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2763




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                                                  NOT PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT


                     No. 04-2763


                   YI XIN DONG,
                        Petitioner

                           v.

               *ALBERTO GONZALES,
         Attorney General of the United States;
                MICHAEL CHERTOFF,
   Secretary of the Department of Homeland Security,
                                      Respondents

        *(Amended pursuant to F.R.A.P. 43(c))


         Petition for Review of an Order of the
          United States Department of Justice
             Board of Immigration Appeals
                (BIA No. A79-682-346)


      Submitted Under Third Circuit LAR 34.1(a)
                 September 29, 2005

Before: RENDELL, FUENTES and WEIS, Circuit Judges.

              (Filed: October 20, 2005)


             OPINION OF THE COURT
RENDELL, Circuit Judge.

       Yixin Dong, a citizen of the People’s Republic of China, petitions for review of

the Board of Immigration Appeals (“BIA”)’s summary affirmance of the Immigration

Judge (“IJ”)’s order denying his application for asylum, withholding of removal, and

protection under the United Nations Convention Against Torture (“CAT”). The IJ denied

Dong’s claims because she found that Dong’s testimony regarding his Falun Gong 1

activities, the purported basis for his claims, was not credible. Although the IJ

acknowledged that the Chinese government persecutes members of Falun Gong, she

concluded that Dong is not, and never has been, a Falun Gong practitioner. We exercise

jurisdiction under 8 U.S.C. § 1252(a)(1). Where the BIA affirms without opinion, the IJ’s

opinion becomes the final agency determination for purposes of judicial review. Gao v.

Ashcroft, 299 F.3d 266, 271 (3d Cir. 2002). We conclude that the IJ’s findings were

supported by substantial evidence and will deny the petition.

                                             I.

       We will limit our factual discussion to those events relevant to our analysis. Yixin

Dong, a 22-year old citizen of China, was apprehended as he arrived at St. John’s in the

United States Virgin Islands on March 16, 2002. The former Immigration and


  1
    Falun Gong is a practice that “blends aspects of Taoism, Buddhism, and the
meditation techniques of Qigong (a traditional martial art) with the teachings of Li
Hongzhi.” Gao v. Ashcroft, 299 F.3d 266, 267 (3d Cir. 2002) (quotations omitted). For
immigration purposes, Falun Gong is treated as an imputed political opinion and a
religion. Zhang v. Ashcroft, 388 F.3d 713, 719-21 (9th Cir. 2004).

                                             2
Naturalization Service (“INS”) began removal proceedings, to which Dong responded by

submitting an Application for Asylum and Withholding of Removal, supported by an

affidavit setting forth the basis for his application, on October 20, 2002. The substance of

Dong’s affidavit was as follows: Dong, a native of Fujian province in China, began

practicing Falun Gong with a group of classmates, in his classmates’ homes, some time in

1998. He practiced about once a month, beginning in 1998, until the summer recess from

school in 1999. During the summer recess, Dong and his classmates were called in to the

local police station for questioning related to their Falun Gong activities. Dong was

expelled from school for practicing Falun Gong. Unable to find work, Dong stayed home

and was often called into the police station for questioning about criminal activity in his

town. He eventually asked his parents to help him come to the United States, where he

arrived in March or April of 2002 and found freedom to practice Falun Gong.

       Dong’s testimony at his hearing before the IJ, on February 4, 2004, differed

substantially from his affidavit. According to Dong’s testimony, an adult neighbor taught

him to practice Falun Gong, and he practiced once or twice a week while he was still in

China. Dong was dismissed from school in June 1999 when the school found out about

his practice. The school called a neighbor’s house to notify Dong of his expulsion

because Dong’s parents did not have a phone; the school was unable to send a written

confirmation because their house had no address. The police came to Dong’s house to

take him to the station for questioning after his expulsion. When Dong’s parents resisted,



                                              3
the police officers beat them. At the station, Dong was undressed and threatened with an

“electric stick.” Dong does not know how long he was detained because he passed out

after being hit and awakened at home approximately two or three days later. After a few

days, the police came looking for Dong again. While his parents were talking to the

police, Dong escaped through the back door of the house and went to Fuzhou, where he

worked on construction sites for about a year. Dong’s parents then made arrangements

with a “snakehead,” or smuggler, to send Dong to the United States.

       At the hearing, Dong also testified that his parents were very poor, and that they

had promised to pay the snakehead about $80,000 to send Dong to the United States.

Dong and his parents still owe around $50,000. Since he has been in the United States,

Dong has lived and worked in seven states as a dishwasher in Chinese restaurants. He

makes a few hundred dollars per week but sends over $1,000 per month back to his

parents in China; about $600 of that $1,000 goes toward interest on the snakehead’s loan.

Although Dong practiced Falun Gong in Philadelphia in July or August of 2003, he

testified that he had stopped practicing because he was too busy working twelve- or

thirteen-hour days.

       The IJ found that, although there was sufficient evidence in the record to establish

that the Chinese government persecutes practitioners of Falun Gong, Dong had not

established that he was or had ever been a member of Falun Gong. She described Dong’s

testimony as “very sketchy, in most instances non-responsive,” and his demeanor as



                                             4
“evasive.” She highlighted that Dong’s testimony was both internally inconsistent and

inconsistent with his affidavit. The IJ found Dong incapable of coherently explaining the

practice of Falun Gong and noted that he had failed to provide any evidence to

corroborate his claim that he had practiced Falun Gong in Philadelphia. In sum, the IJ

concluded, Dong’s “testimony was not believable, it was not consistent and it was not

sufficiently detailed in light of general conditions in China to find that he has a basis for

fear based on practicing Falun Gong.” Instead, she speculated that Dong was sent to the

United States to work and send money home to his parents, whom he repeatedly described

as very poor. The IJ acknowledged that Dong’s fear of retribution or harm by the

snakeheads when he returned to China was legitimate, but determined that such fear did

not qualify as a ground for seeking asylum or withholding of removal. In addition, she

found that Dong had “failed to establish that anyone would be interested in torturing him

should he return to China.” She therefore denied Dong’s asylum, withholding of removal

and CAT claims and ordered his removal.

                                              II.

       Dong’s first claim is that the IJ’s adverse credibility determination is unsupported

by the record. We review an IJ’s adverse credibility determinations under the substantial

evidence standard. Gao, 299 F.3d at 272. We may not overturn an IJ’s credibility

determination “simply because an alternative finding could be supported by substantial

evidence.” Yan v. Ashcroft, 393 F.3d 418, 425 (3d Cir. 2005). Although we afford



                                               5
deference to the IJ’s conclusions, the IJ must provide specific reasons for making an

adverse credibility determination. Balasubramanrim v. INS, 143 F.3d 157, 162 (3d Cir.

1998). Minor inconsistencies that reveal nothing about an asylum applicant’s fear for his

safety are inadequate to sustain an adverse credibility finding. Senathirajah v. INS, 157

F.3d 210, 221 (3d Cir. 1998). Rather, the discrepancies must involve the “heart of the

asylum claim.” Gao, 299 F.3d at 272.

       We conclude that the IJ’s adverse credibility finding in this case was supported by

substantial evidence. First, the discrepancies in Dong’s statements–involving Dong’s

history as a Falun Gong practitioner and his fear of persecution on that basis–go right to

the heart of his claims. Dong provided a completely different account of his practice of

Falun Gong and his persecution in and escape from China at his hearing than he had

provided in the affidavit supporting his asylum application. Second, the IJ clearly

explained the reasons for her determination. In addition to the substantial differences

between Dong’s testimony at the hearing and his affidavit, the IJ relied on Dong’s limited

familiarity with Falun Gong, his “evasive” demeanor at the hearing, and the evidence that

Dong’s motivations for coming to the United States were economic, rather than political

or religious, to reach her determination. Under these circumstances, the IJ was justified

in determining that Dong was ineligible for asylum or withholding of removal.

       Dong also claims that the IJ’s denial of his claim under the CAT was improper.

To establish a claim for relief under the CAT, an applicant must show that “it is more



                                             6
likely than not that he or she will be tortured if removed to the proposed country of

removal.” 8 C.F. R. § 1208.16(c)(2); see Berishaj v. Ashcroft, 378 F.3d 314, 332 (3d Cir.

2004). An adverse credibility finding “does not defeat [an applicant’s] ability to ‘meet

her burden of proof’ under the Convention Against Torture.” Zubeda v. Ashcroft, 333

F.3d 463, 476 (3d Cir. 2003). An IJ must take all relevant evidence, not just the

applicant’s testimony, into account in determining the likelihood of future torture. 8

C.F.R. § 1208.16(c)(3); see id. at 478.

       The basis for Dong’s claim was that, as a member of Falun Gong, he was more

likely than not to be tortured on his return to China. The IJ specifically acknowledged

that evidence in the record established that Falun Gong practitioners are subject to

persecution in China, but she found that Dong was not a Falun Gong practitioner. As we

discussed above, the IJ’s finding was supported by substantial evidence in the record.

Under these circumstances, the IJ’s denial of Dong’s CAT claim was proper. Cf. Sevoian

v. Ashcroft, 290 F.3d 166, 178 (3d Cir. 2002) (upholding BIA’s determination that

respondent failed to establish eligibility for withholding of removal under CAT where

BIA’s reasoning did not contain material factual errors and addressed extrinsic evidence

of country conditions).

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




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