PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 09-2524
_____________
QUAO LIN DONG
aka
Qiao Ling Dong
Quao Lin 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. A076-968-107)
Immigration Judge: Honorable Charles N. Honeyman
_____________
Argued January 10, 2011
Before: RENDELL, AMBRO and FISHER, Circuit Judges
(Opinion Filed March 25, 2011 )
_____________
Joshua E. Bardavid, Esq. [ARGUED]
401 Broadway, 22nd Floor
New York, NY 10013
Counsel for Petitioner
Jacob A. Bashyrov, Esq.
Ilissa M. Gould, Esq.
Eric H. Holder, Jr., Esq.
Thomas W. Hussey, Esq.
Jason Wisecup, Esq. [ARGUED]
United States Department of Justice
Office of Immigration Litigation, Civil division
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
_____________
OPINION OF THE COURT
_____________
RENDELL, Circuit Judge.
At issue in this appeal is an Immigration Judge‟s
ruling, affirmed by the Board of Immigration Appeals, that
the appellant, Quao Lin Dong, failed to meet her burden of
proof in relation to her claim of past persecution set forth in
her Application for Asylum and Withholding of Removal.
The finding was based on Dong‟s failure to secure her
husband‟s testimony or affidavit explaining a fact contained
2
in his asylum application that was inconsistent with Dong‟s
claim and testimony. The IJ and the BIA found that
corroboration was required and not provided, relying on the
precedent we established in Abdulai v. Ashcroft, 239 F.3d
542 (3d Cir. 2001). We disagree and will remand to the BIA
for further consideration consistent with this opinion. At the
same time, we will affirm the BIA‟s ruling that Dong‟s claims
for relief based on future persecution and under the United
Nations Convention Against Torture (“CAT”) must fail.
Background
On May 19, 2000, Quao Lin Dong, a Chinese national,
entered the United States at or near Boston, Massachusetts
without valid entry documents. Dong was detained by the
United States Immigration and Naturalization Service
(“INS”) shortly thereafter. On June 6, 2000, the INS issued a
Notice to Appear, charging Dong with removability from the
United States pursuant to § 212(a)(7)(A)(i)(I) of the
Immigration and Nationality Act (“INA”) as an alien who, at
the time of application of admission, was not in possession of
“a valid unexpired immigrant visa, reentry permit, border
crossing identification card, or other valid entry document.”
8 U.S.C. § 1182(7)(A)(i)(I). On February 9, 2001, Dong filed
an Application for Asylum and for Withholding of Removal,
also later construed as an application for protection under
Article III of CAT. Dong claimed that she feared return to
China on account of past persecution by the Chinese
authorities pursuant to China‟s one-child family planning
policy. On December 3, 2007, after numerous continuances,
Dong testified at a merits hearing in support of her
application.
3
Dong‟s testimony recounted her life in China and her
alleged persecution at the hands of Chinese officials. She was
born in China on November 2, 1967, and was later married to
Le Ju Jian. On November 3, 1991, Dong gave birth to the
first of their three children, a girl. In 1992, following the
birth of her daughter, Dong was forced to have an intrauterine
device, or IUD, inserted for birth-control purposes. Dong
described her husband being forcibly subdued while she was
dragged from her home to have the procedure performed
against her will. Dong‟s husband subsequently fled China,
hoping to obtain legal status in the United States with the
intention of bringing Dong and their daughter Stateside.
In 1995, Dong fell ill from the IUD and later had it
removed. Jian rejoined Dong in China to care for her from
April to June 1996, thereafter returning to the United States.
While her husband was in China, Dong became pregnant. In
January 1997, when Dong was seven months pregnant, family
planning officials visited Dong‟s house. They told her that
they knew of her pregnancy and that China‟s family planning
policy prohibited her from having a second child. Dong was
taken to another location, where she was given an injection
and put into a cell. While in the cell, Dong went into labor.
She was then taken to Guantow Health Hospital, where she
gave birth to a still-born child.
Approximately one month later, Dong was instructed
by the family planning officials to report to have another IUD
inserted. Dong appeared for the insertion appointment, but
she was still experiencing bleeding. After examining her, the
doctor stated that she could not be fitted for the IUD at that
time. Dong was told to report for a second attempt at
insertion in April 1997. She was cautioned by the doctor that
4
if the second attempt at insertion proved unsuccessful, she
would be forced to submit to a procedure that would result in
her sterilization. Instead of taking this chance, Dong fled.
She went into hiding, moving into her cousin‟s house which
was located about two hours from her home. During this
time, Dong was advised by her mother-in-law that the family
planning authorities had come to her house and continued to
look for Dong after she had fled. While in hiding, Dong
made arrangements to join her husband in the United States.
Dong left China in March 1999.
While in the United States, awaiting the completion of
the related administrative proceedings, Dong gave birth to
two more children. On August 11, 2001, in Philadelphia,
Pennsylvania, Dong gave birth to a girl. Less than a year
later, on July 27, 2002, Dong gave birth to a third child, a
boy. Dong‟s oldest child remains in China. The two younger
children live in the United States with Dong and her husband.
Dong offered several pieces of evidence to corroborate
her testimony. Aside from the filing documents, initial
interview transcripts, and a few other pieces of evidence
offered to describe her life in the United States and the births
of her three children, Dong offered three United States
Department of State country reports to support her claim of
fear of future persecution. Dong also offered letters authored
by her mother-in-law and a relative, both of whom live in
China, which buttress, in detail, her testimony as to past
persecution. Specifically, her mother-in-law‟s letter gives an
account of the events, and turmoil, that surrounded the
insertion of IUDs and the alleged forced abortion, as well as
Dong‟s flight into hiding. The relative‟s letter simply states
5
that Dong did live with him from 1997 through 1999 to avoid
family planning officials.
Dong also offered medical records to reflect the events
described in her testimony. Documentation of quarterly
gynecological exams required by the Chinese government
were offered to show the extent of the family planning policy.
Medical records from Temple University Hospital in
Philadelphia, Pennsylvania, from 2001 and 2002, were
produced to show that Dong had discussed the abortion she
was forced to undergo in China in 1997 with her doctors
when seeking medical treatment here in the United States.
Dong also offered a Special Disease Certificate from
Guantow Central Community Hospital stating that she was
seven months pregnant and had undergone an induced
abortion at the facility. However, this was challenged by the
government, who in rebuttal, offered a Department of
Homeland Security report that claimed the certificate was
fraudulent. This conclusion was based on a statement by an
official at Guantow Hospital, made to consular officials as
part of an investigation, claiming that the certificate was
fraudulent because there was no doctor with the name on the
certificate working at the hospital. Dong in turn challenged
the DHS report by offering a letter from Michael Pellerin,
Director of the Political Asylum Research and Documentation
Service, LLC, asserting that the shortcomings of DHS‟s
investigative methodology made its report unreliable.
Pellerin highlighted the failure to research human resource
records or other concrete documentation in arriving at the
conclusion that the certificate was fraudulent. The DHS
report itself discusses the difficulty of securing accurate
information from the hospital. Specifically, the report stated
that “the office does not keep any records of the certificates
6
having been issued … [,] the personnel of the office have
been constantly changing … [, and] [s]ignature verification is
also not easy to conduct.”
Additionally, the record contained Dong‟s husband
Jian‟s asylum application. Jian stated in his 1992 asylum
claim that Dong was forced to undergo an abortion by family
planning officials in 1992, while Dong had testified that the
IUD was inserted in 1992 and the forced abortion occurred in
1997. When the government questioned Dong about this
conflict, she expressed surprise, claiming to have only learned
of this for the first time at her merits hearing. Dong offered
no explanation of the inconsistency created by her husband‟s
asylum claim, except for the comment, “he does not talk a lot
and I did not ask.” Dong did produce her husband‟s parole
and travel documents to corroborate his travel to China in
1996, but she offered no live testimony or affidavit from her
husband to resolve this factual discrepancy.
The IJ summarized the proceedings as a simple
abortion case, requiring the IJ to find Dong credible in her
testimony and persuasive in her request for discretionary
relief. At the outset of his analysis, the IJ was perplexed by
the absence of Dong‟s husband during the hearing, so much
so that, after finding that Dong “largely testified consistent
with the claim,” the IJ held that Dong nonetheless failed to
meet her burden of proof because the evidence she presented
lacked specific corroboration in the form of her husband‟s
testimony to resolve the discrepancy in dates referred to
above. The IJ opined that the conflict between Dong‟s
asylum claim and her husband‟s claim created enough doubt
to make it reasonable for the IJ to expect this specific form of
corroboration. Despite this request, Dong did not produce the
7
requested corroboration, stating that her husband was under
an exclusion order – presumably to explain why it would be
unreasonable to expect him to appear and testify. Dong
argued that the record evidence she had produced was
sufficient to corroborate her claim. The IJ did not consider
what had been produced, as such, but, relying on Abdulai,
required corroboration in the form of the husband‟s testimony
or affidavit regarding the discrepancy in order for Dong to
meet her burden of proof. Accordingly, he denied Dong
asylum.
In addition, the IJ held that Dong failed to make the
required showing necessary to justify asylum based on a well-
founded fear of future persecution, withholding of removal,
or relief under CAT. Dong appealed to the BIA, which in
affirming the IJ‟s ruling, adopted his reasoning and dismissed
the appeal.
Jurisdiction, Standard Of Review,
And Dong‟s Burden Of Proof
The BIA had jurisdiction over Dong‟s appeal from the
IJ‟s determination pursuant to 8 C.F.R. § 1003.1. We have
jurisdiction to review final orders of the BIA under 8 U.S.C. §
1252.
Dong‟s appeal arises from the BIA‟s determination;
however, we have held that when the BIA has affirmed the
IJ‟s decision, and adopted the analysis as its own, we will
review both decisions. See Sandie v. Att’y Gen., 562 F.3d
246, 250 (3d Cir. 2009) (“Because the IJ‟s corroboration
discussion and determinations are affirmed and partially
reiterated in the BIA's decision, we review them along with
8
the BIA decision.”). Therefore, we will review the IJ‟s and
BIA‟s findings of fact to determine whether they are
supported by substantial evidence. Camara v. Att’y Gen., 580
F.3d 196, 201 (3d Cir. 2009) (“We affirm any findings of fact
supported by substantial evidence and are „bound by the
administrative findings of fact unless a reasonable adjudicator
would be compelled to arrive at a contrary conclusion.‟”)
(quoting Yan Lan Wu v. Ashcroft, 393 F.3d 418, 421(3d Cir.
2005)). We review the IJ‟s and BIA‟s legal determinations de
novo. Toussaint v. Att’y Gen., 455 F.3d 409, 413 (3d Cir.
2006). If we take issue with the application of law to Dong‟s
case, we will defer to the authority granted an agency by
Congress and remand to the BIA for the appropriate
consideration. I.N.S. v. Ventura, 537 U.S. 12, 16-17 (2002).
Dong bears the burden of proof in her claim for relief.
For Dong to qualify for the discretionary relief of asylum, she
must establish that she satisfies the definition of “refugee”
within the meaning established by Section 101(a)(42) of the
INA. 8 U.S.C. § 1101(a)(42). A refugee is defined by the
INA as “any person who is outside any country of such
person's nationality … and who is unable or unwilling to
return to … that country 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). Additionally,
“a person who has been forced to abort a pregnancy … shall
be deemed to have been persecuted on account of political
opinion.” 8 U.S.C. § 1101(a)(42)(B).
Dong can demonstrate a well-founded fear of future
persecution by showing that she “has a genuine fear, and that
a reasonable person in [her] circumstances would fear
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persecution” upon return to her native country. Gao v.
Ashcroft, 299 F.3d 266, 273 (3d Cir. 2002). Her well-
founded fear must be both subjectively and objectively
reasonable. Lukwago v. Ashcroft, 329 F.3d 157, 177 (3d Cir.
2003). Dong‟s subjective fear can be shown through credible
testimony that she fears persecution. See Chang v. INS, 119
F.3d 1055, 1066 (3d Cir. 1997). Objective reasonableness
may be established by, among other things, her own
testimony, the testimony of other corroborating witnesses, or
submitting evidence regarding conditions in her home
country. See id.; 8 C.F.R. § 208.13(a) (“The testimony of the
applicant, if credible, may be sufficient to sustain the burden
of proof without corroboration.”).
Dong‟s plea for withholding of removal requires her to
establish that, upon returning to her native country, her “life
or freedom would be threatened in that country because of the
alien‟s race, religion, nationality, membership in a particular
social group, or political opinion.” INA § 241(b)(3), 8 U.S.C.
§ 1231(b)(3). To receive the grant of withholding, the alien
must establish a “clear probability” (or that it is more likely
than not) that the alien would suffer persecution if repatriated.
8 C.F.R. § 208.16(b)(1); INS v. Stevic, 467 U.S. 407, 429-30
(1984). Unlike asylum, withholding of removal is mandatory
rather than discretionary. See Id. at 423.
Dong‟s final claim arises out of Article III of the CAT,
for which relief is available to applicants “where there are
substantial grounds for believing that he would be in danger
of being subjected to torture.” The Foreign Affairs Reform
and Restructuring Act of 1998, Pub. L. No. 105- 277, § 2242,
112 Stat. 2681 (1999); 8 C.F.R. § 208.16(c)(1)-(2). Relief
under CAT exists in the form of withholding of removal to
10
the country of torture. 8 C.F.R. § 208.16(c)(4) . CAT claims
require the alien to “establish that it is more likely than not
that he or she would be tortured if removed to the proposed
country of removal.” § 208.16(c)(2). In assessing the
potential of torture, the IJ must consider “all evidence
relevant to the possibility of future torture,” along with
evidence of “past torture inflicted upon the applicant,” and
the likelihood that an applicant could “relocate to a part of the
country of removal where he or she is not likely to be
tortured.” § 208.16(c)(3).
Issue Of Corroboration1
Before us, Dong argues that the BIA erred in requiring
her husband‟s testimony as corroboration of her claim
because it is both unnecessary and unreasonable. She urges
that, since her husband was in the United States at the time of
the abortion in 1997, his statement, or misstatement, on the
subject was nothing more than hearsay, and of limited
relevance. She also argues that his testimony pales in
significance to the other probative evidence she has offered.
Dong reasons that the other evidence of record – specifically,
the letter from her mother-in-law, the abortion certificate, her
husband‟s parole and travel documents, and the United States
medical documentation – is much more persuasive than her
husband‟s testimony would be. Dong also insists that it is
unreasonable for the BIA to require her husband‟s
1
Based on the standard of review, which requires that we
review both the BIA‟s and the IJ‟s opinions on this matter, we
will reference the BIA‟s opinion when discussing the
situation generally, and reference the IJ‟s opinion when
necessary. See Sandie, 562 F.3d at 250.
11
corroboration in light of the outstanding exclusion order
entered against him, 2 and that her husband’s assertion in his
claim should not be determinative of her credibility. Though
we share some of Dong‟s concerns regarding the relevance of
her husband‟s testimony, we need not address them
specifically, as we find that the IJ and the BIA erred by
misapplying the law regarding when corroboration is
necessary in order to meet one‟s burden of proof.
In Abdulai we vacated a BIA order which found that a
Nigerian man failed to meet his burden for asylum due to a
lack of certain corroborating evidence. 239 F.3d at 555. We
held that it is appropriate for the BIA to “require otherwise-
credible applicants to supply corroborating evidence in order
to meet their burden of proof” when it is reasonable to expect
such evidence to be produced. 3 Id. at 551. Our definition of
reasonable in this context is “where the facts [requiring
corroboration] are central to the applicant‟s claim and easily
subject to verification.” Chukwu v. Att’y Gen., 484 F.3d 185,
192 (3d Cir. 2007). In Abdulai, we approved of the three-step
inquiry utilized by the BIA when considering the need for
2
Le Ju Jian‟s status is subject to a final order of exclusion
with a denied motion to reopen dated July 24, 2006.
3
The REAL ID Act of 2005, although inapplicable to the
current situation because it only applies to asylum
applications filed after May 11, 2005, codified the standard
we adopted in Abdulai. 8 U.S.C. §1158(b)(1)(B) (“Where the
trier of fact determines that the applicant should provide
evidence that corroborates otherwise credible testimony, such
evidence must be provided unless the applicant does not have
the evidence and cannot reasonably obtain the evidence.”).
12
corroboration. 239 F.3d at 554. We held that the IJ can find
that a petitioner‟s failure to produce corroborating evidence is
fatal, but only after following the three-step inquiry, which
requires:
(1) an 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 or she has not, (3) an analysis of
whether the applicant has adequately explained
his or her failure to do so.
Id. at 554 (quoting In re S-M-J-, 21 I. & N. Dec. 722 (BIA
1997)). This inquiry also requires that an applicant be given
the opportunity to produce the corroborating evidence. Id. In
Abdulai we vacated the BIA‟s order and remanded for further
proceedings because the IJ failed to perform the first step of
the inquiry, namely, to identify “what particular aspects of
[the applicant‟s] testimony it would have been reasonable to
expect him to have corroborated.” 239 F.3d at 554.
We have required faithful adherence to the three-prong
test. In Chukwu v. Attorney General, we remanded the BIA‟s
determination that Chukwu, a Nigerian, failed to meet his
burden of proof for an asylum claim that was based on a fear
of persecution due to his membership in MASSOB – the
Movement for the Actualization for the Sovereign State of
Biafra. 484 F.3d at 193. In that case, as in Abdulai, the IJ
failed to give sufficient notice to the applicant of the need to
corroborate his claim of being a member of MASSOB – the
first requirement of the Abdulai inquiry – and, therefore, did
not give the applicant the opportunity to supply evidence that
13
would have satisfied his burden. Id. Conversely, in Sandie v.
Attorney General, we upheld the IJ‟s denial of a Sierra Leone
native‟s application for asylum due to a failure to corroborate.
562 F.3d at 254. In doing so, we stated that the IJ adequately
performed the Abdulai inquiry: giving notice to the applicant
of the facts requiring corroboration, offering ample
opportunity to supply corroboration, and thoroughly
reviewing, on the record, the evidence offered to corroborate
prior to concluding that he failed to meet his burden. Id. at
253. Here, however, we conclude that, unlike in Sandie, the
IJ – in focusing solely on the absence of corroboration
regarding Jian‟s statement about an alleged forced abortion in
1992 in denying Dong‟s claim – failed to follow the steps
required by Abdulai.
The essence of Dong‟s claim, as the IJ highlighted in
the initial proceedings, is Dong‟s allegation that she was
forced by officials to abort a pregnancy in her native China in
1997. We presume that the IJ believed that it was reasonable
to have corroboration of the fact of the forced abortion in
1997, and we have little difficulty in finding that it was
reasonable for him to have this expectation. Dong offered
corroboration of this fact by producing, among other things,
the letter from her mother-in-law, the special disease
certificate from Guantow Central Community Hospital, her
medical records from her doctors‟ visits here in the United
States, and her husband‟s parole and travel documents from
his trip to China in 1996. The IJ and the BIA failed to
consider whether this evidence satisfied step (2) under
Abdulai, that is, whether it corroborated her claim that she
was forced to undergo an abortion in 1997 when she was
seven months pregnant. Rather, the IJ and the BIA found that
because there was a question raised by the statement in Jian‟s
14
application, there was a need to specifically corroborate her
story with his testimony or an affidavit from her husband.
Without this “corroboration,” the BIA concluded that Dong
failed to meet her burden of proof.
In his opinion, the IJ reasoned that Dong‟s husband
was a “star witness” who could shed light on the conflict
between the two applications. While his affidavit may have
cleared up the misunderstanding, we think the focus on this
particular evidence as “corroborating” and required under our
jurisprudence was misplaced. First, corroborating evidence is
required if needed to prove a fact, and if it is “central” to
one‟s claim. Chukwu, 484 F.3d at 192. If Dong‟s claim is
that she was forced to have an abortion in 1997 when Jian
was not present in China, how is Jian‟s testimony about that
event necessary, let alone “central” to Dong‟s claim? The
situation would be different if Jian had been in China at that
time and his application contained a direct inconsistency
regarding what occurred in 1997. But that is not the case.
Moreover, how is his explanation as to what occurred in 1992
either “central” or “corroborating” as to events that occurred
five years later, in 1997? We, thus, question the
characterization of Jian‟s missing evidence as “corroborating”
the fact in question.
Even more important, had the IJ properly followed the
three-step Abdulai inquiry, the IJ would have reasoned
through the main issue – whether or not Dong met her burden
of proof in her asylum application. As noted above, the IJ did
satisfy step one of the inquiry by pointing to the facts
surrounding the alleged forced abortion as those that would
require corroboration. But the IJ then muddied the waters by
shifting his focus away from whether Dong actually
15
“provided information corroborating the relevant facts”
concerning the alleged forced abortion in 1997. Abdulai at
554. Instead, the IJ dwelled on what her husband‟s
explanation would be as to what occurred in 1992 and why
Dong did not produce him to explain himself. The IJ
concluded that Dong‟s failure to produce an affidavit from
her husband – deemed necessary “corroboration” by the IJ –
defeated her claim. We suggest that this is not what our
precedent in Abdulai calls for.
Abdulai typically comes into play when a petitioner
has testified, apparently credibly, about the facts giving rise to
her claim, but the IJ believes it would be “reasonable” for her
to have corroboration of one or more facts, such that he
imposes an obligation on her to produce corroboration in
order to meet her burden. The next step is to assess whether
such corroborating evidence has been supplied. If it is
“reasonable” to expect corroboration of the fact to be
produced – that is, such evidence is central and available –
and it has been produced, Abdulai is satisfied. As to
corroboration not supplied, under step three, the IJ asks if the
failure is satisfactorily explained.
Here, step two was not performed at all. The IJ should
have weighed the Guantow Hospital certificate against the
DHS report and addressed the relative merits of these
documents. The IJ should have evaluated the letters from
Dong‟s family to gauge their corroborative value. The IJ
should have considered Dong‟s husband‟s parole and travel
documents to see whether they explain his whereabouts in
relation to Dong‟s assertions. The IJ should also have
reviewed Dong‟s United States medical records and
considered whether the fact that Dong discussed her alleged
16
forced abortion with her doctors in the United States – when
seeking medical care for the pregnancies that resulted in the
birth of Dong‟s two youngest children – reflects favorably on
whether this did in fact occur, and thus constitutes meaningful
corroboration of her claim. All of this evidence should be
considered to gauge whether Dong met her burden to
corroborate her testimony.
The only aspect not “corroborated” was, we suggest,
not really an issue of “corroboration” at all, but rather an
explanation as to a statement made by her husband in his
application about a forced abortion in 1992. While the
absence of explanation from her husband is perhaps
perplexing, it does not amount to a lack of corroboration, nor
does it undermine the force of any of the other specific
corroborating evidence. And while under step three we might
question why Dong would fail to produce an explanation
from her husband, we do know he was under a removal order
and we can imagine a host of other possible reasons. While
the IJ seems to assume a wife can readily produce a statement
from her husband, we suggest that is not necessarily an
appropriate assumption,4 let alone a proper basis for an
4
At the merits hearing, the IJ seemed to take issue with
Dong‟s assertion that she only then learned about her
husband‟s claim in his asylum application as to what occurred
in 1992. Dong repeatedly stated that she was not privy to
information about her husband‟s asylum application and that
the only way to get this information would be to ask her
husband. The record fails to show that the IJ considered any
differences in Chinese cultural norms which may have
informed her lack of knowledge and general reticence when
discussing her relationship with her husband. In Dia v.
17
adverse finding when other evidence has been offered to
corroborate her version of events. Accordingly, we will
remand to the BIA to remand to the IJ for proper analysis of
the evidence under Abdulai.
Claims Of Persecution Upon Her Return To China
Dong also makes asylum, withholding of removal, and
relief under CAT claims in her application based on a fear of
future persecution and torture upon her return to China. The
BIA held that Dong failed to meet her burden of proof for
these claims. We agree.
Dong argues that, under China‟s family planning
policy, because she will return to China the mother of three,
she will be subjected to forced sterilization or substantial
monetary fines. The BIA held that Dong failed to support
these claims with enough evidence to meet her burden of
proof. After analyzing the evidence, the BIA determined that
the evidence presented by Dong does not show any pattern or
practice of persecution by Chinese officials of applicants on
account of the birth of children in the United States.5 The
BIA also reasoned that Dong‟s claim was unsuccessful
Ashcroft, we commented on the error that an IJ makes in
ignoring cultural differences in customs and communication
when making credibility determinations. 353 F.3d 225, 276
(3d Cir. 2003) (en banc) ( McKee, J., concurring in part and
dissenting in part).
5
In Liu v. U.S. Attorney General, after reviewing
substantially similar evidence, we reached an identical
conclusion. 555 F.3d 145, 150 (3d Cir. 2009); see also
Matter of J-W-S-, 24 I. & N. Dec. 185 (BIA 2007).
18
because: (1) she failed to show that Chinese officials were
still looking for her; (2) Dong‟s documentation was general
country condition information that failed to evince how
potential persecution would specifically apply to her; and (3)
Dong failed to provide any evidence at all that proved the
potential of fines being levied against her. In light of the
substantial evidence standard of review that governs our
analysis, we will not disturb the BIA‟s conclusions related to
Dong‟s failure to meet her burden of proof for her claims
based on a fear of future persecution.
Conclusion
Accordingly, we will affirm the BIA‟s ruling as it
relates to Dong‟s CAT claim and her asylum claim based on a
fear of future persecution. We will vacate the order denying
Dong‟s application for asylum and withholding of removal
based on past persecution, and we will remand this aspect of
her claim to the BIA so it can be remanded to the IJ for
further proceedings consistent with this opinion.
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