Filed: Jul. 13, 2005
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2005 Decisions States Court of Appeals for the Third Circuit 7-13-2005 Kong v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 04-2803 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005 Recommended Citation "Kong v. Atty Gen USA" (2005). 2005 Decisions. Paper 854. http://digitalcommons.law.villanova.edu/thirdcircuit_2005/854 This decision is brought to you for free and open access by the Opinions of the
Summary: Opinions of the United 2005 Decisions States Court of Appeals for the Third Circuit 7-13-2005 Kong v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 04-2803 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005 Recommended Citation "Kong v. Atty Gen USA" (2005). 2005 Decisions. Paper 854. http://digitalcommons.law.villanova.edu/thirdcircuit_2005/854 This decision is brought to you for free and open access by the Opinions of the ..
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Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
7-13-2005
Kong v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-2803
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005
Recommended Citation
"Kong v. Atty Gen USA" (2005). 2005 Decisions. Paper 854.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/854
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2005 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 04-2803
____________
MIN TAT KONG,
Petitioner
v.
ALBERTO R. GONZALEZ,*
Attorney General of the United States
____________
On Petition for Review from an
Order of the Board of Immigration Appeals
(Board No. A79 304 879)
____________
Submitted Under Third Circuit LAR 34.1(a)
June 30, 2005
Before: NYGAARD**, SMITH and FISHER, Circuit Judges.
(Filed: July 13, 2005)
____________
OPINION OF THE COURT
____________
*
Attorney General Alberto R. Gonzales has been substituted for former Attorney
General John Ashcroft, the original respondent in this case, pursuant to Fed. R. App.
P. 43C).
**Honorable Richard L. Nygaard assumed senior status on July 9, 2005.
FISHER, Circuit Judge.
Min Tat Kong, a citizen of Indonesia, seeks review of a Board of Immigration
Appeals’ (“BIA”) denial of his application for asylum, withholding of removal, and
protection under the Convention Against Torture (“CAT”)1 . Kong asserted that as an
ethnic Chinese Christian living in Indonesia, he has suffered persecution based on his
ethnicity and religion at the hands of the native Indonesian Muslim population. Kong
seeks reversal of the BIA’s decision denying his claims. For the reasons that follow, we
will deny the petition for review.
Because we write principally for the parties, we set forth only those facts as are
necessary to our analysis. Kong arrived in the United States in October of 2000. Though
he admitted his removability from the United States under Section 237(a)(1)(B) of the
Immigration and Nationality Act (the “Act”) for remaining longer than permitted, Kong
sought asylum under Section 208(a) of the Act and withholding of removal under
Section 241(b)(3) of the Act. The IJ ruled, and the BIA affirmed without opinion, that
Kong had not brought forth substantial evidence to qualify him for asylum, withholding
of removal, or relief under the CAT. We therefore “review the IJ’s opinion and scrutinize
its reasoning.” Dia v. Ashcroft, 353 F.3d 228, 245 (3d Cir. 2003) (en banc). The standard
for our review is confined to determining whether there is substantial evidence to support
the IJ’s decision. Id at 247. This depends on “whether a reasonable fact finder could
1
Kong has not challenged the denial of his CAT claim.
2
make such a determination based upon the administrative record.” Id at 249. If they
could, substantial evidence exists to support the finding. Id. In determining this, the
findings “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).
Kong first argues that the BIA’s affirmance without rendering its own opinion
violated his due process rights ensuring proper and fair appellate consideration as
established under the Fourteenth Amendment. This argument lacks merit in light of Dia
v. Ashcroft, 353 F.3d 228 (3d Cir. 2003) (en banc), which established that the BIA’s
issuance of an “Affirmance Without Opinion” does not violate a petitioner’s
constitutional rights.
Next, Kong argues he proved past persecution and a well-founded fear of future
persecution based upon his Chinese ethnicity and Christian religion sufficient to obtain
asylum. The Attorney General is authorized by the Act to, in his discretion, grant asylum
to a deportable alien who qualifies as a “refugee” within the meaning of Section
1101(a)(42)(A) of the Act. 8 U.S.C. § 1158(b)(1) (2003). Under the Act, Kong had the
burden of demonstrating his statutory eligibility for asylum – that he suffered persecution
or has a well-founded fear of future persecution due to his ethnic or religious status. 8
C.F.R. § 1208.13(a). Persecution is “threats to life, confinement, torture, and economic
restrictions so severe that they constitute a threat to life or freedom.” Fatin v. INS, 12
F.3d 1233, 1240 (3d Cir. 1993). “The demonstration of a well-founded fear of
3
persecution carries both a subjective and an objective component.” Abdille v. Ashcroft,
242 F.3d 477, 495-96 (3d Cir. 2001). Petitioner must show that “he has a subjective fear
of persecution that is supported by objective evidence that persecution is a reasonable
possibility.” Chang v. INS,
119 F.3d 1055, 1066 (3d Cir. 1997).
In support of his request for asylum, Kong relied on incidents of his having been
robbed or beaten by the Muslim populace to the point that he required medical treatment.
He also related that his younger brother, a Chinese Christian who remains in Indonesia,
has suffered abuse requiring medical care. But, the IJ found that Kong failed to produce
evidence of the medical attention that either he or his brother allegedly required despite
that his mother could have obtained such records on one of her trips to Indonesia. The IJ
further found that his mother’s trips evidenced her lack of fear of returning to Indonesia,
thereby undercutting Kong’s contention of a fear of future persecution. Kong also
presented evidence that ethnic Chinese were targeted during the 1988 Jakarta riots, which
the IJ determined was due to economic problems rather than widespread ethnic dissent.
Although Kong asserted that he was an active Christian who would face persecution upon
his return, he failed to produce any materials evidencing his active involvement in a local
Christian church. The IJ ultimately concluded that Kong had not substantiated his claim
for asylum.
We hold that substantial evidence supports the IJ’s findings that Kong failed to
substantiate his claims of persecution. Based upon our review of the record, we find that
4
substantial evidence supports the IJ’s denial of asylum. Because an applicant seeking
withholding of removal must show a “clear probability” of persecution if forced to return
to his home country, a standard more stringent than that for asylum, Kong’s withholding
of removal claim likewise fails. Janusiak v. INS, 947 F.2d 46, 47 (3d Cir. 1991).
We have considered all of the contentions raised by the parties and conclude that
no further discussion is required. Accordingly, we will deny Kong’s petition for review.
5
