Hong Tuan Lin v. U.S. Attorney General ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-14968 MAY 3, 2011
JOHN LEY
Non-Argument Calendar CLERK
________________________
Agency No. A089-255-535
HONG TUAN LIN,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(May 3, 2011)
Before HULL, MARTIN and KRAVITCH, Circuit Judges.
PER CURIAM:
Hong Tuan Lin, a native and citizen of China, seeks review of the Board of
Immigration Appeals’s (BIA) final order affirming the Immigration Judge’s (IJ)
denial of his application for asylum, withholding of removal, relief under the
United Nations Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (CAT), and cancellation of removal. After a
thorough review of the record, we dismiss the petition in part and deny it in part.
Lin entered the United States in 1998. In 2008, he applied for asylum and
CAT relief based on his political opinion.1 The Department of Homeland Security
then issued a notice to appear, charging him as removable because he was an alien
present in the United States without having been admitted or paroled, 8 U.S.C.
§ 1182(a)(6)(A)(i).
According to Lin’s application for relief from removal, Lin and his father
operated a construction company and were targeted by corrupt local officials in
connection with a construction project. They were forced to pay kickbacks to the
officials to keep construction contracts and pass inspections or else face arrest. In
1997 Lin’s father had been thrown in jail and Lin had gone into hiding before
coming to the United States.
1
Because Lin filed his application after May 11, 2005, he is subject to the REAL ID Act.
See Pub. L. No. 109-13, 119 Stat. 302.
2
Lin later sought cancellation of removal in addition to the other forms of
relief previously requested. In his application, he indicated that he had married in
2002 and his wife was a lawful permanent resident. They had since had a child
who was a United States citizen. Lin explained that his removal would cause a
hardship to his wife and son because his wife was sick and could not work or care
for the child alone. Lin indicated that there was no family in the United States that
could help and his son would not be able to register if returned to China because
the son was a United States citizen.
The IJ denied relief, finding the asylum application untimely and that Lin
had not shown changed or extraordinary circumstances to enable him to avoid this
bar. Nevertheless, the IJ considered the merits of Lin’s application and concluded
that Lin’s testimony lacked credibility and that there was no evidence that the
alleged persecution was tied to a protected ground. Based on these findings, the IJ
also found that Lin failed to establish eligibility for withholding of removal or
CAT relief. Finally, the IJ denied the requested cancellation of removal because
Lin had not shown continuous presence in the United States or that his removal
would constitute an exceptional and extremely unusual hardship to his wife or son.
In his appeal to the BIA, Lin argued that he was eligible for withholding of
removal and that his removal would cause an exceptional and extremely unusual
3
hardship to his family. He also challenged the IJ’s timeliness finding on his
request for asylum, the IJ’s findings on the exceptions to the one-year bar, and the
adverse credibility determination. He did not mention the IJ’s finding as to CAT
relief or to the continuous presence requirement for cancellation of removal.
The BIA affirmed the IJ’s order, adopting the IJ’s decision and adding its
own analysis. The BIA found that the asylum application was untimely and that
Lin had not established past persecution or a well-founded fear of future
persecution in light of his incredible testimony. The BIA also affirmed the IJ’s
finding as to CAT relief and the denial of cancellation of removal.
In his petition for review, Lin argues that the IJ and BIA erred by denying
him asylum and withholding of removal because he established past persecution
on account of his political opinion or imputed political opinion and a well-founded
fear of future persecution because the authorities have continued to look for him
since he left China. Lin also argues that he is entitled to CAT relief because he
would more likely than not be tortured if returned to China. Finally, Lin asserts
that he merits cancellation of removal because he conclusively established that he
had been in the United States for over ten years, and his removal would result in
exceptional and extremely unusual hardship to his wife and son.
4
Preliminarily, we lack jurisdiction to review the BIA’s denial of asylum as
untimely. Chacon-Botero v. U.S. Att’y Gen., 427 F.3d 954, 957 (11th Cir. 2005).
We also lack jurisdiction to consider Lin’s CAT claim because Lin failed to
exhaust administrative remedies with respect to this issue by failing to raise this
argument in his appeal before the BIA. Amaya-Artunduaga v. U.S. Att’y Gen., 463
F.3d 1247, 1250-51 (11th Cir. 2006). Finally, the BIA’s conclusion that Lin had
not demonstrated exceptional and extremely unusual hardship in order to qualify
for cancellation of removal is a discretionary determination that is beyond the
scope of our jurisdiction. Martinez v. U.S. Att’y Gen., 446 F.3d 1219, 1222-23
(11th Cir. 2006). Accordingly, we dismiss these portions of Lin’s petition for
review.
Concerning the remaining claim for withholding of removal, we “review the
decision of the Board, and [also] review the decision of the Immigration Judge to
the extent that the Board expressly adopted the opinion of the Immigration Judge.”
Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341, 1350 (11th Cir. 2009). Because
the BIA expressly adopted the IJ’s decision in this case, we review both opinions.
Id.We assess an agency’s factual determination that an alien is ineligible for
withholding of removal under a highly deferential substantial evidence test.
5
Imelda v. U.S. Att’y Gen., 611 F.3d 724, 727 (11th Cir. 2010). We view “the
record evidence in the light most favorable to the agency’s decision and draw all
reasonable inferences in favor of that decision.” Adefemi v. Ashcroft, 386 F.3d
1022, 1027 (11th Cir. 2004) (en banc). Accordingly, to reverse a factual
determination on appeal, the record must not only permit another interpretation of
the evidence, but compel it. Id. When an IJ makes an adverse credibility finding,
the petitioner has the burden to show that the credibility determination “was not
supported by ‘specific, cogent reasons’ or was not based on substantial evidence.”
Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1287 (11th Cir. 2005). Like any other
factual finding, a credibility determination “may not be overturned unless the
record compels it.” Id.To qualify for withholding of removal, an alien must show that if returned
to his country, the alien’s life or freedom would be threatened on account of race,
religion, nationality, membership in a particular social group, or political opinion.
8 U.S.C. § 1231(b)(3). This burden requires the alien to demonstrate that he
would more likely than not be persecuted if returned to the country of deportation.
Imelda, 611 F.3d at 728. Evidence of past persecution on account of a protected
ground creates a presumption that an alien’s life or freedom would be threatened
upon return to his country. Id.; 8 C.F.R. § 208.16(b)(1)(i). If the alien does not
6
establish past persecution, he bears the burden of showing a clear probability that:
(1) he personally would be persecuted in the future on account of one of the five
enumerated grounds; and (2) he could not avoid this future threat to his life or
freedom by relocating, if under all the circumstances it would be reasonable to
expect relocation. See 8 C.F.R. § 208.16(b)(2).
In this case, substantial evidence supports the IJ’s adverse credibility
determination. The IJ pointed to specific inconsistencies in the asylum
application, Lin’s testimony at the removal hearing, and the documentary evidence
submitted as the basis for the adverse credibility finding. After reviewing this
evidence, we conclude that the record here does not compel us to overturn the
adverse credibility finding. In light of this, Lin has not met his burden of proving
past persecution or a clear likelihood of future persecution.
Furthermore, even if we were to accept his allegations, the record does not
compel the conclusion that Lin is entitled to withholding of removal because he
failed to show that alleged persecution was on account of a protected ground. We
therefore deny this portion of the petition.
PETITION DISMISSED IN PART, DENIED IN PART.
7