12-1277
Dong v. Holder
BIA
Ferris, IJ
A097 958 279
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 24th day of June, two thousand thirteen.
PRESENT:
DENNIS JACOBS,
Chief Judge,
JON O. NEWMAN,
DEBRA ANN LIVINGSTON,
Circuit Judges.
_____________________________________
QIJIN DONG, AKA MICHAEL CHAN,
Petitioner,
v. 12-1277
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Cora J. Chang, New York, New York.
FOR RESPONDENT: Stuart F. Delery, Acting Assistant
Attorney General; Ada E. Bosque,
Senior Litigation Counsel; Flor M.
Suarez, Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Qijin Dong, a native and citizen of China, seeks review
of a March 7, 2012, decision of the BIA affirming the
February 1, 2010, decision of Immigration Judge (“IJ”) Noel
Ferris, finding that he had filed a frivolous asylum
application, and failed to meet his burden of proof for
withholding of removal and for relief under the Convention
Against Torture (“CAT”). In re Qijin Dong, No. A097 958 279
(B.I.A. Mar. 7, 2012), aff’g No. A097 958 279 (Immig. Ct.
N.Y. City Feb. 1, 2010). We assume the parties’ familiarity
with the underlying facts and procedural history in this
case.
Under the circumstances of this case, we have reviewed
the IJ’s decision including the portions not explicitly
discussed by the BIA. See Yun-Zui Guan v. Gonzales, 432
F.3d 391, 394 (2d Cir. 2005). The applicable standards of
review are well-established. See 8 U.S.C. § 1252(b)(4)(B);
Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).
2
I. Asylum
In making a frivolousness determination, an IJ must:
(1) give notice to the alien of the consequences of filing a
frivolous application; (2) make a specific finding that the
alien knowingly filed a frivolous application; (3) identify
sufficient evidence in the record to support the finding
that a material element of the asylum application was
deliberately fabricated; and (4) allow the alien sufficient
opportunity to account for any discrepancies or implausible
aspects of the claim. Mei Juan Zheng v. Mukasey, 514 F.3d
176, 180 (2d Cir. 2008) (citing Matter of Y-L-, 24 I&N Dec.
151, 155 (BIA 2007)). An asylum application may be found
frivolous once it is filed, and subsequent withdrawal of the
application does not negate such a finding. See Mei Juan
Zheng v. Holder, 672 F.3d 178, 184-85 (2d Cir. 2012).
Dong has failed to show any error in the agency’s
frivolousness finding. As to the first procedural
requirement for making such findings, the IJ properly read
Dong the warnings, and Dong affirmed that his application
was true and that he wanted to submit it to the court. See
Mei Juan Zheng, 514 F.3d at 180. In compliance with the
second requirement, the IJ made a specific finding of
frivolousness. Id.
3
As to the third requirement, Dong argues that the IJ
failed to find a material element of his second asylum
application fabricated as required to deny his asylum claim
raised therein. However, the IJ may “enter frivolousness
findings on any filed application, regardless of whether it
has been withdrawn,” Mei Juan Zheng, 672 F.3d at 182
(emphasis added); see also Matter of X-M-C-, 25 I&N Dec.
322, 325 n.3 (BIA 2010) (“[The IJ is not limited] to
considering the frivolousness of only new or currently
pending asylum applications.”), and such a finding renders
the applicant permanently ineligible for asylum, see
8 U.S.C. § 1158(d)(6). As the IJ reasonably found that
material elements of Dong’s first asylum application were
deliberately fabricated, the IJ did not err in making a
frivolousness finding and further was not required to make
such a finding as to Dong’s second application in order to
find him ineligible for asylum on the bases raised therein.
See Biao Yang v. Gonzales, 496 F.3d 268, 277 (2d Cir. 2007);
see also 8 U.S.C. § 1158(d)(6).
As to the last factor, Dong argues that the IJ did not
properly consider his explanation that the person who
smuggled him into the United States coerced him into making
4
the false claim in his first application. However, the IJ
reasonably considered and rejected Dong’s explanation
because Dong continued to pursue the false claim for more
than one year after being smuggled into the country and
admitted that he would have continued to pursue it absent
the advice of his second attorney. See Mei Juan Zheng, 514
F.3d at 180; Matter of B-Y-, 25 I&N Dec. 236, 240 (BIA
2010). Because the agency followed the proper procedural
safeguards and reasonably found that Dong deliberately
fabricated a material element of his first asylum
application, there is no error in the frivolousness finding.
See Mei Juan Zheng, 672 F.3d at 184; see also Y-L-, 24 I&N
Dec. at 155.
II. Withholding of Removal and CAT
A frivolous asylum application finding does not
preclude an alien from applying for withholding of removal
under either 8 U.S.C. § 1231(b)(3) or the CAT. See 8 C.F.R.
§ 1208.20. In this case, the agency did not err in finding
that Dong did not state a claim for such relief.
The agency reasonably concluded that Dong’s alleged
fear of harm under China’s coercive population control
policy was speculative, as he had not violated the policy
and the sole basis for his fear was his mother’s purported
5
forced sterilization. See Jian Hui Shao v. Mukasey, 546
F.3d 138, 143 (2d Cir. 2008); see also Jian Xing Huang v.
U.S. INS, 421 F.3d 125, 129 (2d Cir. 2005); Shao Yan Chen v.
U.S. Dep’t of Justice, 417 F.3d 303, 305 (2d Cir. 2005).
The agency also did not err in finding that Dong failed to
demonstrate that Chinese officials were likely to persecute
and torture him upon repatriation based on a suspicion that
he had departed China illegally, particularly when he
admitted that he left the country legally and he did not
submit evidence demonstrating that similarly situated
individuals face harm. See Saleh v. U.S. Dep't of Justice,
962 F.2d 234, 239 (2d Cir. 1992) (“punishment for violation
of a generally applicable criminal law is not persecution”);
see also Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d
156, 160 (2d Cir. 2005) (holding that a petitioner is not
“entitled to CAT protection based solely on the fact that he
is part of the large class of persons who have illegally
departed China.”).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of
removal that the Court previously granted in this petition
is VACATED, and any pending motion for a stay of removal in
this petition is DISMISSED as moot. Any pending request for
6
oral argument in this petition is DENIED in accordance with
Federal Rule of Appellate Procedure 34(a)(2), and Second
Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
7