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Xiao Fei Dong v. Mukasey
Citation: 307 F. App'x 547Docket: No. 08-1504-ag
Court: Court of Appeals for the Second Circuit; January 21, 2009; Federal Appellate Court
Petitioner Xiao Fei Dong, a citizen of China, seeks judicial review of a BIA order affirming an Immigration Judge's (IJ) decision that denied his applications for asylum, withholding of removal, and relief under the Convention Against Torture. The BIA found Dong ineligible for asylum based on his wife's coerced abortion, clarifying that the legal definition of "refugee" does not extend to partners of individuals who have undergone such procedures. The Court emphasized that claims of persecution based solely on another's forced abortion are not viable. Additionally, the BIA determined that Dong failed to demonstrate past persecution related to his resistance to China's population control policies. His indirect resistance, such as hiding his wife, was deemed insufficiently overt, and there was no evidence of persecution stemming from this conduct. Dong's assertion that his wife's fine and the loss of their child constituted persecution was rejected, as these experiences did not meet the threshold of severity required for a claim. Consequently, Dong was not entitled to a presumption of future persecution due to his failure to establish past persecution. The BIA determined that there was no evidence to support Dong's claim of likely future persecution, noting his departure from China was uneventful and he provided no indication of current official interest in him. Consequently, the BIA found that Dong did not meet the necessary burden for a well-founded fear of persecution, affirming the denial of his asylum application. Since Dong could not demonstrate an objective likelihood of persecution, he also could not satisfy the higher standard for withholding of removal, as both claims were based on the same facts. Additionally, Dong did not contest the denial of CAT relief in his petition, which resulted in that claim being waived. As a result, the petition for review was denied, and the motion for a stay of removal was dismissed as moot.