Filed: Aug. 04, 2005
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2005 Decisions States Court of Appeals for the Third Circuit 8-4-2005 Kong v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 04-1989 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005 Recommended Citation "Kong v. Atty Gen USA" (2005). 2005 Decisions. Paper 740. http://digitalcommons.law.villanova.edu/thirdcircuit_2005/740 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the United 2005 Decisions States Court of Appeals for the Third Circuit 8-4-2005 Kong v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 04-1989 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005 Recommended Citation "Kong v. Atty Gen USA" (2005). 2005 Decisions. Paper 740. http://digitalcommons.law.villanova.edu/thirdcircuit_2005/740 This decision is brought to you for free and open access by the Opinions of the U..
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Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
8-4-2005
Kong v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-1989
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005
Recommended Citation
"Kong v. Atty Gen USA" (2005). 2005 Decisions. Paper 740.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/740
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NOT PRECEDENTIAL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. 04-1989
____________
DI WU KONG,
Petitioner
v.
*ALBERTO GONZALES, ATTORNEY GENERAL
OF THE UNITED STATES OF AMERICA,
Respondent
*(Amended pursuant to Rule 43(c), Fed. R. App. Pro.)
____________________
ON PETITION FOR REVIEW OF ORDER OF THE
BOARD OF IMMIGRATION APPEALS
(No. A70-699-882)
____________________
Submitted pursuant to LAR 34.1(a)
July 11, 2005
Before: ALITO and BECKER, Circuit Judges, and SHADUR, District Judge *
(Filed: August 4, 2005)
____________________
OPINION OF THE COURT
____________________
*
Honorable Milton I. Shadur, United States District Judge for the Northern District
of Illinois, sitting by designation.
PER CURIAM:
Di Wu Kong (“Petitioner”), a native and citizen of the People’s Republic of China
(“the PRC”), seeks review of a decision by the Board of Immigration Appeals (“the
BIA”) affirming a decision by an immigration judge. The Immigration Judge (the “IJ”)
denied Petitioner’s applications for asylum, withholding of removal, and protection under
the Convention Against Torture. Petitioner sought asylum on the basis of his opposition
to the PRC’s “one child” policy and his fear of persecution and torture if he was returned
to the PRC. As we write for the parties only, we do not set out the facts separately. We
conclude that the BIA’s decision was supported by substantial evidence, and we deny the
petition for review.
I.
Where, as here, the BIA affirms an immigration judge’s decision without issuing
its own separate opinion, this Court reviews the decision of the immigration judge.
Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir. 2001). We may not reverse an
immigration judge’s findings of fact unless the administrative record was such that “any
reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C.
§1252(b)(4)(A)-(B). Where an immigration judge’s decision is based on an adverse
credibility determination, the decision will be affirmed “if there is substantial evidence in
the record to support it.” Senathirajah v. INS,
157 F.3d 210, 216 (3d Cir. 1998).
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II.
An applicant for asylum bears the burden of establishing that he has suffered past
persecution or has a well-founded fear of future persecution. See 8 C.F.R. § 1208.13(a)-
(b). In order to be eligible for withholding of removal, an alien must demonstrate that he
would “more likely than not” be persecuted if he were returned to his home country. Li
Wu Lin v. INS, 238 F.3d 239, 244 (3d Cir. 2001). If an applicant cannot meet the
standard for asylum, this Court may assume that the applicant cannot meet the higher
standard for withholding of removal. Lukwago v. Ashcroft,
329 F.3d 157, 182 (3d Cir.
2003).
III.
Petitioner argues that the IJ’s finding that he was credible enough to depart
voluntarily means that his testimony was, necessarily, also credible enough to warrant
asylum and withholding of removal. Regardless of whatever merit this argument might
have, however, its premise is false. The IJ made clear that he was not granting Petitioner
voluntary departure because he found the Petitioner credible, but “because of the
confusion” regarding how Petitioner entered the United States and what provision of the
U.S. Code Petitioner was charged with violating. The IJ’s leniency on this point does not
entitle Petitioner to asylum or withholding of removal.
IV.
As the IJ noted, several important aspects of Petitioner’s account undermine its
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plausibility.
First, Petitioner’s account of his approximately 20-day visit to the PRC in 1994
does not fit with his claim that the PRC authorities are searching for him and seeking to
persecute him. In his testimony before the IJ, Petitioner said that he obtained the
necessary PRC travel documents from a travel agency, which obtained them from the
PRC Embassy. Under cross-examination before the IJ, Petitioner acknowledged that he
was inspected when he entered and left the PRC, and that PRC border guards stamped
entry and departure stamps on his passport. Petitioner nevertheless asserted that he was
not detained because the PRC did not have a computerized database at the time.
Second, Petitioner testified before the IJ that he and his wife had lived in several
addresses in the PRC from August 1992 until he left the country in October 1992.
However, on his biographical statement submitted to the INS, Petitioner listed only a
single address in the PRC for the period between October 1988 and October 1992.
Third, there is evidence that Petitioner was improperly tailoring his account to
comport with the date of the sterilization certificate. Petitioner testified that his wife was
forced to undergo sterilization after the birth of their second child in June 1989, the time
of the sterilization certificate. Likewise, Petitioner testified at one point that his second
child was born in 1989 and was added to the household registration in 1989. However,
there was information provided at the asylum office that Petitioner’s second child was
added to the household registration in 1992, which suggests that the second child might
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have been born in 1992. Moreover, based on Petitioner’s demeanor and his shifting
answers regarding the date of his wife’s sterilization, the IJ also found that Petitioner
appeared to have “[done] his best to memorize the document that was submitted into the
record.”
Fourth, Petitioner’s account of the PRC’s attempt to sterilize him and his eventual
escape from the hospital is suspect. Petitioner testified that eight men came to his home
and forced him to a hospital, and yet no one guarded his hospital room. As a result he
was able to escape by throwing a chair through a window, climbing out of it, and running
away, despite the “loud noise” when the window broke. This story of abduction and
escape assumes an unlikely mix of diligence and absent-mindedness on the part of
Petitioner’s would-be captors.
Given the lenient standard of review, the evidence is insufficient to compel a
conclusion different from the IJ’s determination.
V.
As Petitioner failed to establish his eligibility for asylum, he necessarily failed to
meet the higher standard of eligibility for withholding of removal. See Lukwago, 329
F.3d at 182.
Petitioner also failed to establish that he was entitled to protection under the
Convention Against Torture. Aside from a bald assertion that the was entitled to such
protection, Petitioner did not address the issue in his brief to this Court.
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VI.
For the reasons given above, we deny Di Wu Kong’s petition.
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