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Quao Lin Dong Aka v. Attorney General of the United States

March 25, 2011


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

The opinion of the court was delivered by: Rendell, Circuit Judge.


Argued January 10, 2011

Before: RENDELL, AMBRO and FISHER, Circuit Judges


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 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.


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, re-entry 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.

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 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 ...

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