Zhen Rong Lin v. Gonzales , 230 F. App'x 795 ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
April 18, 2007
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
ZH EN RO N G LIN ,
Petitioner,
v. No. 06-9524
(No. A76-279-171)
ALBERTO R. GONZA LES, (Petition for Review)
Attorney General,
Respondent.
OR D ER AND JUDGM ENT *
Before O ’B RIE N and BROR BY, Circuit Judges, and BRO W N, ** District Judge.
Petitioner Zhen Rong Lin, a native and citizen of China, seeks review of
a decision of the Board of Immigration Appeals (BIA) that dismissed his appeal
from an immigration judge’s (IJ) decision denying his application for asylum,
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
**
The H onorable W esley E. Brown, Senior District Judge, District of K ansas,
sitting by designation.
restriction on removal, and protection under the Convention Against Torture
(CAT). W e deny the petition for review.
BACKGROUND
On June 8, 1998, Lin was interdicted at sea near Agana, Guam, in a
Chinese fishing vessel that contained more than seventy undocumented aliens
from China who were being smuggled to Guam. During the ensuing
investigation, immigration special agent M ichael D. Hernandez prepared a Form
I-213, which stated that
it appears that [Lin] boarded the . . . vessel as a crewman/enforcer as
probably arranged by the smuggling bosses in China, also known as
“SnakeHeads.” [Lin] was identified by many of the smugglees as an
enforcer. The enforcers on the boat were essentially crewmen who
controlled the smugglees, and whose responsibilities included
cooking for the smugglees, controlling the aliens with the use of
clubs, and handcuffing the aliens. [Lin] was positively identified as
a person who both carried a club and who handcuffed some of the
smugglees during the off-loading process.
R. at 367. Lin refused to speak with the officers, so no statement was taken at
that time.
The next day, Lin was interview ed by a senior immigration inspector with
the assistance of an interpreter. He told the inspector that he left China “[d]ue to
economic difficulties,” id. at 231, and he was afraid that he would be harmed if he
returned there.
Lin was charged with and pled guilty to improper entry into the United
States in violation of 8 U.S.C. § 1325. In subsequent immigration proceedings,
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he conceded removability, and applied for asylum, restriction on removal, and
protection under CAT, on the ground that he faced persecution under China’s
family-planning policies. The IJ granted the government’s motion to amend the
Notice to Appear to reflect that Lin was an arriving alien, and at the same time
received in evidence the records of his federal court conviction and the Form
I-213.
Lin’s removal hearing took place on September 13, 2005, in Aurora,
Colorado. After considering the evidence, the IJ concluded that his testimony
lacked credibility, denied his applications, and ordered him removed to China.
The BIA summarily affirmed the IJ’s decision and this petition for review
followed.
LIN’S ACC OUNT O F EV EN TS
Lin married W en Lin in April 1995, and shortly thereafter they applied for
a birth permit. Because they were an older couple (he was twenty-five and she
was tw enty-four), Chen Chow, the village family-planning supervisor, allegedly
gave them verbal permission to become pregnant without waiting for a permit,
because the person who actually issued the permits was out of the office. 1 W en
1
Lin testified that he and W en wanted to conceive as soon as possible
because they were considered an older couple by village standards and his mother
was anxious for a grandchild.
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became pregnant in M ay 1995, and their daughter was born on February 10,
1996. 2
Trouble first began before their daughter’s birth when the couple received
the actual birth permit dated June 5, 1995, which stated that no child should be
born before April 1996. Although Lin did not yet know that W en was pregnant,
he testified that he immediately went to see Chen about the discrepancy in the
dates. Chen told him “[a]t that time, I promise[d] you, but this is the document
I’m issuing today. . . . why [are] you so afraid since you guys are not pregnant
anyway.” R. at 138.
Shortly thereafter, Lin discovered that W en was in fact pregnant, and he
went back to see Chen, who again told him not to worry. According to the
document submitted by Lin at his hearing, at the same time village officials
registered the date of Wen’s pregnancy as M ay 1995.
Following his daughter’s birth in February 1996, the village committee
registered her birth on the permit as January, but then corrected the date to
February. 3 Although the permit still listed April 1996, as the date after which the
couple could have a child, Lin testified that he w as not worried because
2
The village family-planning policy allow s for only one child. If the first
child is female, however, a couple can apply for a second birth permit after
waiting four years.
3
A forensic document examiner from the Immigration and Naturalization
Service opined that the February 1996 date of birth on the permit had been
altered twice. R. at 359.
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“M r. Chen, he promised . . . it’s okay, and then secondly we were [a] late married
couple.” Id. at 143-44. However, when Lin tried to have his daughter listed on
his household registry, village officials refused to do so, because she had been
born earlier than April 1996. He returned again to see Chen, who “comforted”
him, and said “don’t worry, I will take care of it.” Id. at 144.
Nonetheless, in July 1996, Lin’s mother received a notice from village
officials that W en needed to be sterilized before October 1, 1996. The couple
again sought out C hen, but learned that he had been replaced by a new
supervisor, who told them that “he didn’t care what [the previous supervisor] did
and promised to [them],” id. at 147, and that he or his wife should be sterilized.
Lin testified that neither he nor his wife underwent sterilization at that time
because his “mom . . . really [wanted] to have another grandkid, a boy, and . . . in
the village, it’s very important to have a male child. If you don’t have a male
child, you will be teased.” Id. at 148. After his wife failed to report for
sterilization, the village family-planning unit visited his job where he worked as
an auto mechanic, which in turn issued a notice that he should report for
sterilization within three days. Lin’s failure to undergo the procedure resulted in
the loss of his job.
Undeterred, family-planning officials continued to visit his mother’s home
where Lin and his family had sought refuge, to urge compliance with the
sterilization procedure. In M ay 1997, fearing arrest, Lin, W en, and their daughter
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moved to his mother-in-law’s house. W hen the officials “couldn’t find [them],”
id. at 150, they “removed all the furniture that we acquired from our marriage . . .
[and] start[ed] destroying and tak[ing] our home apart.” Id. “I’m very clear
about the date. It’s M arch 8, 1998.” Id.Even in the face of these escalating tactics, Lin emerged from hiding to
“tr[y] to argue with [the officials], reason with them.” Id. He described the scene
at his home as including more than ten officials, and the new supervisor, who
were trying to dismantle a window. His pleas went unheeded, and the supervisor
called him a “stupid pig,” id. at 152, and said that he would be arrested and
sterilized. The insults continued when Lin called the supervisor a “running dog
for the Communist Party.” 4 Id. After one official punched him in the nose, the
ensuing “confusion” and “commotion” allowed him to “escape” from the village,
and flee to the mountainside home of a “fellow student.” Id. at 153.
In an effort to flush the couple out of hiding, village officials arrested and
jailed Lin’s mother for a week. After her release, they arrested and jailed his
father-in-law for several days. Although the couple considered turning
themselves in, his mother’s advice convinced them to stay the course: “[T]hen
I remember[ed] my mom, she told us . . . that no matter what happened to them,
4
At his hearing, Lin testified that he was afraid to return to China because he
would be placed on trial for having insulted the supervisor during this encounter.
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you guys should insist on what you guys believe in, and people also tell us
that . . . in a short period of time, they will release us.” Id. at 156.
Tired of hiding from officials, Lin and his w ife decided that he should
leave China. “[M ]y fellow students, they tried to convince me to come to the
United States that things w ill work out . . . and then they introduced me to
somebody . . . through my fellow student’s family member.” Id. at 157. That
“somebody” was a member of the Snakeheads – a group of smugglers. Lin made
a deal that because he w as “coming by boat, and in case during the journey there
was a shipwreck, and I never arrived, . . . I will only have to pay after I arrived.”
Id. He left China on M ay 28, 1998. The price of the trip – $15,000 – allegedly
was paid by his relatives to the Snakeheads after he arrived in Guam.
Lin testified that in September 1999 W en w as arrested at his aunt’s house
and later forcibly sterilized. In correspondence, she told him not to return to
China because “those people are still looking for revenge.” Id. at 160. “They
will put me through a trial . . . because they said that . . . I was abusing them
verbally.” Id. at 161.
On direct examination, the government objected to leading questions by
Lin’s attorney, complaining that Lin’s testimony appeared to be based on
practiced script. And on cross-examination, the government gave up on an entire
line of questioning about what happened aboard the smuggling vessel, because he
was nonresponsive. The IJ agreed, stating that “[h]e is being nonresponsive.” Id.-7-
at 167. Similarly, Lin could not remember anything about the federal court
proceedings in which he pled guilty to illegally entering the United States. As for
his statements to immigration officials in Guam, he said that “everything was so –
looked so dangerous. I was so afraid, and I was so dizzy. I was still reeling from
the sea sickness.” Id. at 172. He also said that the sound of gunfire made it
difficult to think straight. Because he was forced by the smugglers to cook for his
fellow passengers as punishment for a smoking infraction, he theorized they
mistakenly identified him as a crew member.
Concerning events prior to Lin’s departure from China, the government
introduced evidence that on M ay 11, 1998, about two weeks before he fled the
country, a residence registration card was filled out that listed his job as a farmer.
Separate family registrations were issued on the same date for his wife and
daughter. However, Lin denied coming out of hiding to register himself and his
family, and said that his mother gave the government the information as part of a
census. Further, he could not provide the name of his schoolmate’s father who
arranged his departure – “I d[idn’t] know his name. I just call[ed] him uncle.”
Id. at 178. Last, his explanation for why village officials allegedly corrected the
date of his daughter’s birth on the permit, but refused to correct the date on which
the couple would be allowed to have a child, was the non-sequitur: “Because they
would calculate according to like from October, and then after the calculation,
they put in the dates.” Id. at 180.
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THE IJ’S DECISION
The decision to deny the applications for relief was based on the IJ’s
determination that Lin was not credible. A mong other things, the IJ found that:
! Smugglees typically pay the Snakeheads prior to leaving China – not
after they arrive in the United States. Although the IJ noted that it was possible
that the Snakeheads agreed to defer payment until they had successfully conveyed
him to the United States, his experience in twelve years as an IJ is that “the Court
has always heard that [the smugglees] have to come up with the money before
they leave the country, so this is rather unusual.” Id. at 82.
! State Department reports indicate that citizens in violation of
family-planning policies can pay a fine. However, Lin decided that his family
should pay the Snakeheads $15,000 – “a lot more than the penalty would be” – to
get him out of China. The IJ called the decision to abandon his family instead of
paying a fine “rather unusual, also.” Id.! W en never mentioned the arrest of their parents or her sterilization
procedure in any of her correspondence.
! During the hearing, Lin was cooperative and answered the questions
posed by his lawyer, but on questioning by the government’s lawyer, he was
“evasive, . . . did not know the answer, [or] . . . never really would answer her
questions directly.” Id. at 83. “[T]hat bother[ed] the Court because it just
seem[ed] like he was trying to hide something . . . .” Id.-9-
! The Form I-213 said that “numerous people on the boat indicated that
[Lin] was part of the crew, that he was carrying a club, that he would handcuff
them, that he was an enforcer . . . .” id. at 84, and the IJ found that “he w as part
of the crew, and . . . an enforcer on that particular boat.” Id. at 88.
! Lin initially told immigration officials that he left China “for economic
reasons.” Id.! It was unusual that Lin was charged and convicted of illegal entry.
! Although Lin testified that he and wife were in hiding, just a few weeks
before he fled China, he and his wife and daughter were listed on residence
registration cards. And although he testified that village officials refused to
register his daughter after her birth in 1996, he had no explanation for why they
were willing to register her in 1998.
! The birth permit Lin presented at the hearing had been altered.
! Although Lin testified that he escaped from China to avoid its
family-planning policies and allegedly had several pieces of documentation to
support his claim, the IJ found it “rather suspicious that . . . he never told them
about that when he was first picked up.” Id. at 86.
“After a careful review of the record, the Court f[ound] that [Lin’s]
testimony was not sufficiently detailed, consistent, or believable to provide a
plausible and coherent account of the basis for his fears, and thus [did] not
[suffice] to establish his eligibility for asylum . . . .” Id. at 87. Further, because
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he failed to meet the lesser burden of proof for asylum, his claim for restriction
on removal necessarily failed. The BIA dismissed his appeal “[f]or the reasons
stated by the [IJ].” Id. at 2.
ANALYSIS
W hen the B IA summarily affirms an IJ’s decision, we review the IJ’s
decision as the final agency determination. Elzour v. Ashcroft, 378 F.3d 1143,
1150 (10th Cir. 2004). Our review is circumscribed by 8 U.S.C. § 1252(b)(4)(B),
which provides, “administrative findings of fact are conclusive unless any
reasonable adjudicator would be compelled to conclude to the contrary.” W e also
keep in mind that Lin has the burden to prove his claims. 8 U.S.C. §§
1101(a)(42)(A) & 1231(b)(3); 8 C.F.R. §§ 208.13 & 208.16. The consequence of
that burden is the risk of nonpersuasion. 5 “The burden of proof determines the
risk of nonpersuasion. Its significance is limited to those cases in which the trier
of fact is left in doubt. M cCormick on Evidence, § 336 p. 947. If the trier is in
5
At the risk of carrying coals to Newcastle, we discuss briefly the dual
m eaning of the term “burden of proof.” W e note that “[t]he two
distinct concepts [embodied in the term ‘burden of proof’] may be
referred to as (1) the risk of nonpersuasion, sometimes called the
‘burden of persuasion,’ and (2) the duty of producing evidence (or
the burden of production), sometimes called the burden of going
forward with the evidence.” Fleming James, Jr. & G eoffrey C.
H azard, et al., C ivil Procedure § 7.12 (5th ed. 2001). These two
concepts can be distinguished by the fact that “[u]nlike the burden of
persuasion, the burden of production can shift back and forth
between parties during the trial.” Larry L. Teply & Ralph U.
W hitten, Civil Procedure 855 (2d ed. 2000). M oore v. Kulicke &
Soffa Indus., Inc., 318 F.3d 561, 566 (3d Cir. 2003).
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doubt, it must decide against the party bearing the burden of proof. Id.” Fallon
v. Illinois, 882 F.2d 1206, 1217 (7th Cir. 1989).
In his petition for review, Lin concedes the IJ correctly stated the
applicable law. The crux of his argument, instead, is that the IJ’s adverse
credibility determination is not supported by substantial evidence, and he
erroneously relied on the Form I-213 report for his finding that Lin was part of
the smuggling crew.
In most immigration cases, as here, an applicant’s case depends almost
entirely upon his credibility. If he is not credible he will be unable to sustain his
burden of proof or the evidence may be in equipoise; in either event he loses.
“Credibility determinations, like other findings of fact, are subject to the
substantial evidence test. In particular, we have held that in order to determine
that an alien is not a credible witness, the IJ must give specific, cogent reasons for
disbelieving his or her testimony.” Diallo v. Gonzales, 447 F.3d 1274, 1283
(10th Cir. 2006) (quotation and alteration omitted). “W e may not weigh the
evidence, and we will not question the [IJ’s] . . . credibility determinations as long
as they are substantially reasonable.” Woldemeskel v. INS, 257 F.3d 1185, 1192
(10th Cir. 2001).
“An IJ’s adverse credibility determination may appropriately be based upon
such factors as inconsistencies in the witness’ testimony, lack of sufficient detail,
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or implausibility.” Elzour, 378 F.3d at 1152. Further, the “IJ may find a witness
not to be credible because of his or her testimonial demeanor.” Id. at 1152-53. 6
Clearly the IJ did not believe Lin. There were multiple reasons, but in some
part it was because Lin’s testimony was impeached by the Form I-213. Lin
complains the Form I-213 was improperly admitted and considered because it
contained hearsay and, thus, deprived him of his right to a fair hearing. Not so.
6
The REAL ID Act of 2005 includes new provisions relating to agency
credibility determinations:
Considering the totality of the circumstances, and all relevant factors,
a trier of fact may base a credibility determination on the demeanor,
candor, or responsiveness of the applicant or witness, the inherent
plausibility of the applicant’s or witness’s account, the consistency
between the applicant’s or w itness’s w ritten and oral statements
(whenever made and whether or not under oath, and considering the
circumstances under which the statements were made), the internal
consistency of each such statement, the consistency of such
statements with other evidence of record (including the reports of the
Department of State on country conditions), and any inaccuracies or
falsehoods in such statements, without regard to whether an
inconsistency, inaccuracy, or falsehood goes to the heart of the
applicant’s claim, or any other relevant factor. There is no
presumption of credibility, however, if no adverse credibility
determination is explicitly made, the applicant or witness shall have
a rebuttable presumption of credibility on appeal
8 U.S.C. § 1158(b)(1)(B)(iii). See also 8 U.S.C. §§ 1229a(c)(4)(C), and
1231(b)(3)(C). These provisions, however, only apply to aliens who applied for
asylum or other relief after M ay 11, 2005, the effective date of the Act. See Pub.
L. No. 109-13, div. B § 101(h)(2), 119 Stat. 231, 305. See Yan v. Gonzales,
438 F.3d 1249, 1251 n.3 (10th Cir. 2006). Lin’s hearing was held September 13,
2005; his application was filed before the effective date of the Real ID Act of
2005.
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“[E]videntiary rules are not strictly applied at immigration hearings.” Bauge v.
INS, 7 F.3d 1540, 1543 (10th Cir. 1993). Instead, “[t]he test for admissibility of
evidence in a deportation hearing is whether the evidence is probative and whether
its use is fundamentally fair so as not to deprive the alien of due process of law.”
Id. (quotation omitted).
“A Form I-213 is an official record routinely prepared by an INS agent as a
summary of information obtained at the time of the initial processing of an
individual suspected of being an alien unlawfully present in the United States.”
Id. at 1543 n.2 (quotation omitted). This form is introduced at immigration
proceedings so that the officer w ho prepared it rarely is required to attend. See
Felzcerek v. INS, 75 F.3d 112, 117 (2nd Cir. 1996) (holding that a Form I-213 is
presumptively reliable and can be admitted in deportation proceedings without
calling the author as a witness, particularly when the alien has not presented any
evidence to contradict or impeach the statements in the report).
Setting aside the fact that Lin offered no evidence of untrustworthiness or
improper motive on the part of either the smugglees or the immigration officials,
the information in the Form I-213 was probative because it contained important
information about his alleged role as a crew member and enforcer and undercut his
story that he was escaping from China at all. Further, its admission was not
fundamentally unfair, because Lin was given the opportunity to explain his
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activities aboard the vessel, but he was evasive and/or nonresponsive. Therefore,
the Form I-213 constituted fundamentally fair and probative evidence that Lin did
not adequately rebut, and the IJ did not err in relying on it.
W e also reject Lin’s next argument, which is that the government was
required to produce the smugglees and/or the immigration officials at his hearing.
He cites Hernandez-G uadarrama v. Ashcroft, 394 F.3d 674, 682-83 (9th Cir.
2005), in support of this claim. Our consideration of this argument begins and
ends w ith the fact that the hearsay affidavit in Hernandez-Guadarrama was the
only evidence of the alien’s smuggling activities – and the reason for his
deportation. Id. at 681. These are not the facts of this case.
Third, Lin concedes that “the [IJ] provided additional reasons for finding
[him] to be incredible.” Pet’r Br. at 34. He argues, however, that the IJ’s
“analysis was heavily influenced by the . . . belief that [he] was a smuggling
enforcer.” Id. W e disagree. In addition to the fact that the IJ’s belief that Lin
was a crew member is supported by substantial evidence, there is nothing in the
record to establish that this belief was the touchstone of the decision. Instead, the
IJ provided many additional reasons for his adverse credibility determination.
Lin’s final argument is that the IJ’s remaining credibility findings are not
supported by specific, cogent reasons in the record, but instead are the product of
speculation, conjecture, or unsupported personal opinion. Again, we disagree.
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Although some of the findings do not find record support, the vast majority do.
For example, the IJ found it implausible that Lin fled China to avoid its
family-planning practices, but then told immigration officials that he left the
country for economic reasons. He also doubted the credibility of Lin’s
family-planning concerns because he never mentioned this claim to immigration
officials. M oreover, at least one of the documents submitted by Lin had been
altered. Next, State Department reports indicate that citizens in violation of
family-planning policies can pay a fine, R. at 292, however, Lin instead chose to
abandon his wife and daughter, and left his relatives with a $15,000 bill to the
Snakeheads. Last, Lin’s demeanor during the hearing convinced the IJ that he was
trying to hide something. Inferences to be drawn from demeanor are subject to
many intangibles drawn from a face-to-face encounter, difficult to document or
describe and rarely capable of being captured in a cold record. An IJ’s evaluation
of demeanor is not an apt subject for appellate second guessing. Deference is due
to the fact finder both for practical reasons and as a testament to institutional trust.
And while we accord great deference to the IJ’s demeanor assessments, we find
comfort in the confirming tattletales of record – the government’s objections to
leading questions and apparently scripted replies and Lin’s non-responsive
behavior on cross examination, his faulty memory, his confused and confusing
answers, and his convenient explanations of prior conflicting testimony. In sum,
the IJ’s credibility determination is supported by substantial evidence of record
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and detailed in specific, cogently stated reasons. W e would be loath to say “any
reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C.
§ 1252(b)(4)(B).
W e uphold the IJ’s decision. The petition for review is DENIED.
Entered for the Court
Terrence L. O’Brien
Circuit Judge
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