                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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




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                                                                 NOT PRECEDENTIAL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
