Ren Deng Dong v. ATTORNEY GENERAL OF THE UNITED STATES On Petition for Review of an Order of the…

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-2787
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REN DENG DONG,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A77-994-021)
Immigration Judge: Honorable Rosalind K. Malloy
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 9, 2009
Before: MCKEE, NYGAARD and ROTH, Circuit Judges
Opinion filed: November 24, 2009
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OPINION
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PER CURIAM
Petitioner Ren Deng Dong is a native and citizen of the People’s Republic of
China who petitions for review of the Board of Immigration Appeals’s (“BIA”) decision

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affirming a decision of the Immigration Judge (“IJ”) denying his applications for asylum,
withholding of removal, and protection under the United Nations Convention Against
Torture (“CAT”). For the following reasons, we will deny Dong’s petition for review.
I.
Dong entered the United States without inspection on November 1, 2001 and was
immediately detained. He was issued a Notice to Appear on November 8, 2001 that
charged him as being removable under 8 U.S.C. § 1182(a)(7)(A)(i)(1). Dong was
released from detention on bond on December 13, 2001. Dong thereafter conceded that
he was removable but, on December 10, 2002, filed an application for asylum,
withholding of removal, and CAT relief asserting that he had been persecuted for
opposing China’s family planning policy.
At his merits hearing, Dong testified that on October 1, 2001, he and his four-
month-pregnant girlfriend, Chuijin Lin, were refused a marriage certificate at their
village’s committee office because at 18 years old they were too young to marry under
Chinese law. Dong argued with the officials, who forced him out of the office and
telephoned the police, accusing Dong of assaulting them. When the police arrived and
attempted to arrest Dong, he escaped with the help of villagers. He immediately went
into hiding while Lin lived with his parents. Dong testified that while he was in hiding,
family planning officials sought to arrest him and left a fine notice at his parents’ house
charging him with failing to obtain permission to become pregnant. He testified that his

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parents paid the fine. Two weeks after the incident with the village officials, Dong was
smuggled into the United States. Upon his release from detention, Dong called Lin, who
told him that she had been forced to have an abortion. He also spoke with his parents,
who told him that the family planning officials still wanted to arrest him. He stated that
he was frightened to return to China because he “thinks [he] will have big trouble,
because they accused [him] of beating up government officials.”
Substantial problems with Dong’s testimony, affidavit, and documentation arose
on cross-examination. He testified that he and Lin were married in a traditional Chinese
ceremony, but that he did not mention this in his affidavit because he had no proof of the
marriage and because the marriage was not recognized by the Chinese government.
Additionally, he submitted an abortion certificate that listed Lin’s age as 22 although the
abortion ostensibly occurred two weeks after they had applied for a marriage license,
when they were both 18 years old. Dong suggested that this was a clerical mistake.
Further, Dong had testified on direct examination that he and Lin applied for a marriage
certificate because she was pregnant, yet his affidavit states that they wanted to get
married simply because they were in love, and that he did not learn of Lin’s pregnancy
and abortion until after he arrived in the United States. As to the incident with the
government officials, he testified on cross-examination that the officials pushed and
dragged him out of the office after he refused to leave. When they reached the street, the
officials began beating him and he struck back. As a result, the official charges lodged

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against him were for “beating family planning officials.”
The IJ denied Dong’s application for asylum on the merits and because it was
untimely. She made an adverse credibility determination, and concluded that Dong did
not meet the standard for withholding of removal or CAT relief. The IJ explained that
Dong “absolutely failed to establish that he was persecuted on account of violating the
family planning policy” because “he did not establish that he has a wife, that she
underwent an abortion, or that she was pregnant.” The IJ further stated that based on
Dong’s own testimony, his behavior at the family planning office would make him the
subject of legitimate prosecution rather than persecution. She then held that his claim
was fraudulent, warranting a finding that his asylum application was frivolous.
The BIA affirmed the IJ’s denial of relief, determining that the IJ offered “specific,
cogent reasons for her adverse credibility determination.” On appeal, Dong argued for
the first time that Lin’s “sterilization” was sufficient to demonstrate that he had suffered
past persecution. The BIA rejected this claim for lack of evidence and because it was the
first time that he had raised this issue. The BIA vacated the IJ’s determination that
Dong’s asylum application was frivolous.
Through counsel, Dong now petitions for review of the BIA’s final order of
removal.
II
The government correctly argues that we lack jurisdiction to review the decision

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Because Dong applied for relief before May 11, 2005, the REAL ID Act’s1
standard governing review of adverse credibility determinations is not applicable to this
case. See Kaita, 522 F.3d at 296.
Further, we note that to the extent Dong’s claims of past persecution are2
predicated on his relationship to Lin, his credibility and his marital status are irrelevant, as
we recently held that the Immigration and Nationality Act does not extend automatic
refugee status to unmarried partners or spouses of individuals who have been forcibly
subjected to family planning measures. See Lin-Zheng v. Att’y Gen., 557 F.3d 147, 156
(3d Cir. 2009).
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that Dong’s asylum application was untimely. 8 U.S.C. § 1158(a)(3); see also
Sukwantputra v. Gonzales, 434 F.3d 627, 633-34 (3d Cir. 2006). We do, however,
retain jurisdiction to review the denial of withholding of removal and CAT relief. See
Tarrawally v. Ashcroft, 338 F.3d 180, 185-86 (3d Cir. 2003). We review these decisions
under the substantial evidence standard and will uphold the BIA’s determinations “unless
the evidence not only supports a contrary conclusion, but compels it.” Zubeda v.
Ashcroft, 333 F.3d 463, 471 (3d Cir. 2003) (internal citation omitted).
Substantial evidence supports the adverse credibility determination. See Kaita v.1
Att’y Gen., 522 F.3d 288, 296 (3d Cir. 2008) (explaining the pre-REAL ID Act standard
of review). Dong’s hearing was marred by contradictory information regarding his
marital status, the circumstances of his altercation with family planning officials, whether
Lin was forced to have an abortion, and the reason he was being sought by the authorities.
The BIA appropriately found that these discrepancies “support the Immigration Judge’s
adverse credibility finding.” 2

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Dong may rightfully fear prosecution for allegedly beating village officials, and
fear of prosecution may constitute grounds for withholding of removal if it is motivated
by one of the enumerated factors, such as political opinion, “and if the punishment under
the law is sufficiently serious to constitute persecution.” Shardar v. Ashcroft, 382 F.3d
318, 323 (3d Cir. 2004). However, as in Shardar, substantial evidence supports the
conclusion that Dong is not being prosecuted due to his political opinion; rather, the
police are attempting to prosecute him for fighting with town officials because he argued
with them after they would not give him a marriage certificate and he refused to leave the
office. See id. at 324. Moreover, being dragged and/or pushed out of the family planning
office and subsequently beaten up by officials, although troubling, does not rise to the
level of persecution. See id.
Finally, there is no evidence that Dong would more likely than not be tortured if he
is removed to China so as to entitle him to CAT relief. See 8 C.F.R. § 208.16(c)(2).
For the foregoing reasons, we deny Dong’s petition for review.

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