                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-11-2009

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Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2893




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                                                  NOT PRECEDENTIAL
                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                     No. 08-2893
                                     ___________

                                   JIAN WEN DING,
                                                       Petitioner

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                                       Respondent
                     _________________________________

                      On Petition for Review of an Order of the
                            Board of Immigration Appeals
                              (Agency No. A98-714-645
                   Immigration Judge: Honorable Kenneth Josephson
                     ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    June 11, 2009
            Before: SLOVITER, STAPLETON and COWEN, Circuit Judges

                              (Opinion filed June 11, 2009)
                                     ___________

                                      OPINION
                                     ___________

PER CURIAM

      Jian Wen Ding, a Chinese native and citizen, petitions for review of a final order

of the Board of Immigration Appeals (“BIA”) affirming the denial by the Immigration

Judge (“IJ”) of Ding’s application for asylum, withholding of removal and relief under

the Convention Against Torture (“CAT”). Ding, who arrived in the United States without
being admitted or paroled as required by the INA, was charged with removability under §

212(a)(6)(A)(i) of the INA. Ding conceded the charge of removability and filed the

asylum application. Before the IJ, Ding testified that he had suffered past persecution and

feared future persecution by the Chinese government as a practitioner of Falun Gong.

Ding testified that he began practicing Falun Gong after his cousin informed him that it

could be useful in treating the pain in his joints. Ding alleged that Chinese officials

arrested him twice after they discovered he was practicing Falun Gong. Ding further

alleged that the Chinese authorities physically mistreated him and, upon his release, he

received medical treatment in the form of “Chinese massage” and pain medication. The

IJ found Ding’s testimony not credible and also found that Ding failed to provide

adequate corroborating evidence to support his application. Specifically, the IJ faulted

Ding for failing to provide statements from his sister who lives in the United States or his

parents in China corroborating his practice of Falun Gong. Ding appealed to the BIA

which adopted and affirmed the IJ’s decision.

       We have jurisdiction pursuant to 8 U.S.C. § 1252(a). We uphold the BIA’s

determinations if they are supported by reasonable, substantial and probative evidence on

the record considered as a whole. Yusupov v. Att’y Gen., 518 F.3d 185, 197 (3d Cir.

2008). Under the substantial evidence standard, “the BIA’s finding must be upheld

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

Ashcroft, 242 F.3d 477, 483-84 (3d Cir. 2001) (citing INS v. Elias-Zacarias, 502 U.S.



                                              2
478, 481 n.1 (1992)). Where the BIA substantially adopts the findings of the IJ, we

review the decisions of both the IJ and the BIA. He Chun Chen v. Ashcroft, 376 F.3d

215, 222 (3d Cir. 2004).

       To be granted asylum, Ding must show that he is “unable or unwilling to return to

[China] . . . because of persecution or a well-founded fear of persecution on account of

race, religion, nationality, membership in a particular social group, or political opinion.” 8

U.S.C. § 1101(a)(42)(A); see also 8 U.S.C. § 1158(b)(1)(A). To be eligible for

withholding of removal, Ding must demonstrate that “there is a greater-than-fifty-percent

chance of persecution” in China based on one of these protected grounds. Senathirajah v.

INS, 157 F.3d 210, 215 (3d Cir. 1998); see also 8 U.S.C. § 1231(b)(3)(C). For relief

under the CAT, Ding must demonstrate that it is more likely than not that he would be

tortured if removed to China. See 8 C.F.R. § 208.16(c)(2).

       The BIA’s finding that Ding’s testimony was not credible is supported by

substantial evidence. See Sukwanputra v. Gonzales, 434 F.3d 627, 636 (3d Cir. 2006) (an

adverse credibility determination is appropriately based on inconsistent statements and

contradictory evidence). Ding points out that the IJ, in making the credibility

determination, relied on inconsistencies between Ding’s initial interview with an

immigration officer and his testimony before the IJ. In that statement, Ding told the

immigration officer that he was coming to the United States to seek employment. While

we have counseled against placing too much weight on a petitioner’s interview with



                                              3
immigration authorities at the point of entry, see He Chun Chen, 376 F.3d at 223-24,

Ding’s statement does not appear to have the type of defects which make such statements

unreliable. See Balasubramanrim v. I.N.S., 143 F.3d 157, 163 (3d Cir. 1998) (airport

statement unreliable where immigrant did not have translator and the interview was not

accurately recorded.) In any event, the IJ pointed to other reasons for finding Ding’s

testimony incredible, including the lack of detail in the types of medication he received

after his arrest and the lack of work history in China. Therefore, there is substantial

evidence to support the IJ’s adverse credibility determination.

       The IJ and the BIA also faulted Ding for failing to provide corroborating evidence

to support his testimony. The BIA’s rule regarding corroborating evidence contemplates

a three-part inquiry: “1) identification of the facts for which ‘it is reasonable to expect

corroboration;’ 2) an inquiry as to whether the applicant has provided information

corroborating the relevant facts; and, if [he] has not, 3) an analysis of whether the

applicant has adequately explained [his] failure to do so.” Abdulai v. Ashcroft, 239 F.3d

542, 554 (3d Cir. 2001) (citation omitted).1 Here, the IJ found it significant that Ding

failed to provide a statement corroborating his practice of Falun Gong from his sister,

who lives in the United States, or his parents, who live in China but keep in regular



   1
    The REAL ID Act of 2005, which applies here since Ding filed his application after
May 11, 2005, instructs courts to defer to the trier of fact’s determination on
corroborating evidence. Chukwu v. Att’y Gen., 484 F.3d 185, 192 (3d Cir. 2007). The
REAL ID Act, however, does not change our rules regarding the IJ’s duty to develop the
applicant’s testimony in accordance with the Abdulai steps. Id.

                                               4
contact with Ding. The IJ also noted that Ding failed to provide statements from doctors

who treated his medical conditions in China. While Ding provided a statement from his

cousin corroborating his practice of Falun Gong in China and the events surrounding his

two arrests in China, it was not unreasonable for the IJ and the BIA to expect Ding to

provide medical records from doctors who treated his alleged joint pain and injuries he

sustained during his arrest. Further, it was not unreasonable for the IJ and the BIA to

expect a statement from Ding’s sister, who immigrated to the United States two months

before Ding, and lived with him while he was practicing Falun Gong in China. Ding’s

explanation, that he did not know he was supposed to provide the corroborating evidence

and that Chinese doctors do not keep records, is not adequate. Ding acknowledged that

his attorney informed him to gather all available information that could be helpful to his

case. Moreover, in lieu of medical records, Ding could have obtained statements from the

doctors who treated him in China. Therefore, substantial evidence supports the IJ and

the BIA’s finding that Ding failed to provide sufficient corroborating evidence to support

his testimony.

       Because Ding cannot satisfy the standard for asylum, he cannot satisfy the higher

burden of proof for withholding of removal. Janusiak v. INS, 947 F.2d 46, 47 (3d Cir.

1991). Nor does the record show that Ding would likely be tortured by or with the

acquiescence of a Chinese official. Therefore, he is not eligible for protection under the

CAT. Pierre v. Att’y Gen., 528 F.3d 180, 190 (3d Cir. 2008) (en banc).



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