Xian Tong Dong v. Holder
2012 U.S. App. LEXIS 20664
| 1st Cir. | 2012Background
- Dong seeks asylum in the U.S. based in part on his wife being forced to abort in China; he entered in 2006 and his asylum petition followed in 2006.
- IJ denied per se refugee status under 8 U.S.C. § 1101(a)(42)(B) for spouses of forced abortion; he also claimed religious persecution based on Evangelical Christian beliefs.
- BIA affirmed the IJ’s decision; this court reviews the agency decisions as a unit where the BIA adopts the IJ’s findings.
- Statutory interpretation of 8 U.S.C. § 1101(a)(42)(B) is challenged, arguing the section covers spouses of forced abortion.
- Court engages in de novo review of statutory interpretation with Chevron deference to the Attorney General’s interpretation.
- Petitioner argues lack of direct evidence of religious persecution, and relies on generalized country reports indicating trends rather than his own circumstances.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1101(a)(42)(B) extends to a spouse | Dong argues the statute covers spouses. | AG interpretation is reasonable and controls; statute targets the individual who was forced. | No; statute does not cover spouses. |
| Whether Dong has a well-founded fear of religious persecution | Evidence shows potential persecution for Evangelical Christians; fear tied to religion. | Record lacks specific, direct, credible link to Dong; evidence too generalized. | Denied; no well-founded fear supported by substantial evidence. |
Key Cases Cited
- Lin-Zheng v. Att'y Gen., 557 F.3d 147 (3d Cir. 2009) (plain-language interpretation favored against spousal eligibility)
- Shi Liang Lin v. U.S. Dep't of Justice, 494 F.3d 296 (2d Cir. 2007) (supports plain-language reading; alternatives discussed)
- Yi Ni v. Holder, 613 F.3d 415 (4th Cir. 2010) (deference to AG interpretation under Chevron)
- Yu v. U.S. Att'y Gen., 568 F.3d 1328 (11th Cir. 2009) (affirms Chevron deference to AG construction)
- Amouri v. Holder, 572 F.3d 29 (1st Cir. 2009) (summaries standard of review in immigration matters)
- Seng v. Holder, 584 F.3d 13 (1st Cir. 2009) (requires specific, direct evidence for religious persecution)