Pheng Kuang Na v. Attorney General United States
665 F. App'x 178
| 3rd Cir. | 2016Background
- Pheng Kuang Na, an Indonesian national, overstayed a nonimmigrant visa and applied for asylum and withholding of removal in September 2010 (after the one-year deadline).
- Na claimed extraordinary circumstances (PTSD and major depression supported by a psychologist’s affidavit) excused the late filing and asserted past persecution as a Chinese Christian after a 2005 attack by an Indonesian police officer that allegedly knocked out six teeth.
- The IJ denied relief, finding the asylum application untimely and that the 2005 assault did not rise to persecution; the BIA dismissed Na’s appeal and the Third Circuit remanded once for clarification.
- On remand the BIA again dismissed the appeal, concluding Na failed to prove extraordinary circumstances directly causing the late filing and independently finding the 2005 incident was not persecution and no clear probability of future persecution.
- The Third Circuit: dismissed the petition insofar as it challenged the agency’s timeliness/extraordinary-circumstances determination for lack of jurisdiction; denied the petition as to withholding of removal because substantial evidence supported the agency’s denial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness / extraordinary-circumstances standard | Na: statute/regulation requires satisfaction standard, not preponderance; IJ applied wrong burden | Gov/BIA: determination involves discretionary satisfaction standard and is factual/weighing of evidence | Court lacks jurisdiction to review agency’s factual determination; petition dismissed in part |
| Application of psychological evidence | Na: IJ/BIA ignored or improperly weighed psychologist’s report showing PTSD preventing timely filing | BIA: considered evidence and concluded it did not show extraordinary circumstances causally related to delay; IJ’s weighing is factual | Court cannot review credibility/weighting; BIA’s de novo sufficiency finding stands for jurisdictional purposes |
| Past persecution (withholding) — 2005 police attack | Na: 2005 beating (six teeth lost) constituted past persecution supporting withholding | Gov/BIA: single, isolated assault causing injury was traumatic but not persecution under legal standard | Denied: substantial evidence supports BIA that incident was not persecution (not repeated/systemic; not life-threatening or severe enough) |
| Future persecution / pattern-or-practice claim | Na: fears future persecution as Chinese Christian; points to discrimination and country conditions | Gov/BIA: record shows widespread discrimination but not pervasive/systemic persecution; State Dept. reports show general religious freedom | Denied: substantial evidence that no clear probability of future persecution and no pattern-or-practice established |
Key Cases Cited
- Jarbough v. Attorney General, 483 F.3d 184 (3d Cir. 2007) (limits court review of discretionary factual determinations about asylum timeliness)
- Sukwanputra v. Gonzales, 434 F.3d 627 (3d Cir. 2006) (interpreting "satisfaction" language as discretionary and factual)
- Fatin v. INS, 12 F.3d 1233 (3d Cir. 1993) (definition of persecution requires threats to life, confinement, torture, or severe economic restrictions)
- Kibinda v. Attorney General, 477 F.3d 113 (3d Cir. 2007) (single violent incident did not constitute persecution)
- Voci v. Gonzales, 409 F.3d 607 (3d Cir. 2005) (repeated incidents and severity relevant to persecution finding)
- Lie v. Ashcroft, 396 F.3d 530 (3d Cir. 2005) (attacks alone do not necessarily establish pattern-or-practice against a religious/ethnic group)
- Guo v. Ashcroft, 386 F.3d 556 (3d Cir. 2004) (standard of review: substantial evidence for factual determinations)