Zhen Xiung Lin v. Ashcroft , 81 F. App'x 403 ( 2003 )

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
11-13-2003
Lin v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-3699
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003
Recommended Citation
"Lin v. Atty Gen USA" (2003). 2003 Decisions. Paper 112.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/112
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2003 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-3699
ZHEN XIUNG LIN,
Petitioner
v.
JOHN ASHCROFT,
Attorney Generalof the United States,
Respondent
On Petition for Review of an Order of the
Board of Immigration Appeals
(BIA No. A77-281-535)
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 27, 2003
Before: SCIRICA, Chief Judge, NYGAARD and AMBRO Circuit Judges
(Filed November 13, 2003 )
OPINION OF THE COURT
SCIRICA, Chief Judge.
Petitioner Zhen Xiung Lin seeks review of an immigration judge’s decision
denying relief on asylum, withholding of removal, and Convention Against Torture
(“CAT”) claims, which the Board of Immigration (“BIA”) summarily affirmed.1
Petitioner alleges that the immigration judge’s findings are not based upon substantial
evidence. As we find no error, we will affirm the judgment and deny the request for a
remand.
I.
Lin, a citizen of the People’s Republic of China, entered the United States on
August 22, 1999 without a valid visa. On that day, Lin swore statements before an INS
officer at the airport that he left “China because [he was] one of four children.” On
September 9, 1999, Lin, with the assistance of counsel, participated in a Credible Fear
Interview. Lin expressed his fear that he would be persecuted in China for his
homosexual activity. He claimed his village wanted to arrest, torture, detain, and beat
him. When questioned, Lin admitted he had encountered no problems with the police,
military, or authorities; had never been arrested, detained, or questioned by them; and did
1
The BIA has jurisdiction under 8 C.F.R. § 1003.1(b)(3), which grants it appellate
jurisdiction over immigration judge decisions in removal proceedings. We have
jurisdiction under the Immigration and Nationality Act, 8 U.S.C. § 1252, which provides
the exclusive procedure for judicial review of all final removal orders. Venue is proper in
the Third Circuit because Lin’s removal proceedings were completed in Newark, New
Jersey. See id. at § 1252(b)(2).
2
not fear being harmed by them. Lin stated that he had tried to move to another village but
felt unsafe there.
In an asylum application dated February 17, 2000, Lin submitted he was seeking
asylum because he was persecuted by the Chinese government for being homosexual. He
claimed the police threatened to detain him and shocked his genitals in an attempt to
make him heterosexual. In a statement in support of his application, Lin related that he
and his boyfriend, Ling Xian Yo, had been discovered by the police during an intimate
moment in the park, and the police tortured, detained, and threatened them for their
conduct. Lin also explained that he could not flee internally within China because if he
were caught, he would be returned to his village.
On May 26, 2000, Lin testified at a hearing before Immigration Judge Eugene
Pugliese. Lin recounted how the police tortured, detained, and threatened him because of
his homosexuality. He testified that he did not flee internally within China because he
lacked proper documents. When asked about his statements at the airport, Lin testified
that he did not inform the INS officer that he had been persecuted due to his
homosexuality because he was “shy” and “fearful.” 2
2
The record includes the State Department’s Profile of Asylum Claims and Country
Conditions which details how China has become more tolerant of homosexuals and how
authorities have been instructed to no longer punish homosexuals. The Profile also
explains how “internal flight in China is more of a possibility now than previously” with a
“floating population” of 10 to 100 million evading “resident-based controls.”
3
II.
On M ay 26, 2000, the immigration judge issued an oral decision denying Lin’s
claims for asylum, withholding of removal, and relief under the CAT. The judge
concluded that Lin’s testimony was insufficient to satisfy his burden of proof because his
testimony lacked “credibility.” As a basis for the credibility determination, the judge
commented on the degree to which Lin’s story was “embellished” during repeated
retelling. The judge observed that in sworn statements in an interview at the airport, Lin
made no mention of homosexuality or of past torture, arrests, or detentions. It was not
until the Credible Fear Interview that Lin proffered a claim of asylum based on
homosexual persecution. The judge stressed that Lin stated three times that he had not
been mistreated by authorities; instead, Lin claimed the villagers wanted to arrest and beat
him. The judge found Lin’s asylum application “looks like it had been written [at] two
different times,” noting that the one portion states police had “threatened” to detain him
whereas another portion states he had already been detained two weeks. The judge also
found Lin’s demeanor unconvincing due to his “hesitation” and “feigned inability to
respond to questions.” 3 For those reasons, the judge concluded Lin was not entitled to
3
The judge also held that Lin had not shown that homosexuals were a persecuted group
in China. In his analysis, the judge found that the State Department Profile did not
establish a prima facie case for a pattern or practice of persecution against homosexuals
in China. Addressing Lin’s contention that he could not relocate, the judge also observed
that the Profile reported that millions have relocated in China without permission.
4
relief. The BIA affirmed the immigration judge’s order without opinion. Lin now
appeals and asks this Court to remand the matter to the BIA for further proceedings.
III.
To be granted asylum as a refugee, an applicant must establish that he is unable to
return his homeland “because of persecution or a well-founded fear of persecution on
account of race, religion, nationality, membership in a particular social group, or political
opinion.” 4 8 U.S.C. § 1101(a)(42). Whether an applicant has demonstrated “persecution”
or a “well-founded fear of persecution” is a factual determination reviewed under the
substantial evidence standard. Abdille v. Ashcroft, 242 F.3d 477, 483 (3d Cir. 2001). The
Court will uphold findings of fact to the extent they are “supported by reasonable,
substantial, and probative evidence on the record considered as a whole.”
Balasubramanrim v. INS, 143 F.3d 157, 161 (3d Cir. 1998). Similarly, adverse credibility
determinations are also reviewed for substantial evidence. Id. The Court must sustain an
adverse credibility determination if there is substantial evidence in the record to support
it. Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002).
Under the substantial evidence standard, an immigration judge’s determination
will be upheld on review unless “any reasonable adjudicator would be compelled to
conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); accord INS v. Elias-Zacarias, 502
4
An applicant carries the burden of supporting his claim that he is a refugee who
qualifies for asylum. 8 C.F.R. § 208.13(a).
5
U.S. 478, 483-84 (1992) (A petitioner “must show that the evidence he presented was so
compelling that no reasonable factfinder could fail” to find otherwise.). An immigration
judge must state specific reasons for his credibility determination, and the Court must
evaluate those reasons “to determine whether they are valid grounds upon which to base a
finding that asylum applicant is not credible.” Balasubramanrim, 143 F.3d at 162(internal quotation marks omitted). Additionally, “[t]he reasons must be substantial and
bear a legitimate nexus to the finding.” Gao, 299 F.3d at 276.
Here, substantial evidence supports the immigration judge’s determination that Lin
failed to support his asylum claim with credible evidence.5 The judge provided “specific,
cogent reasons” that are valid grounds for doubting Lin’s testimony. The judge noted that
Lin failed to mention homosexuality, detention, or torture in his sworn interview with the
INS.6 The judge further observed that while under oath at the Credible Fear Interview,
Lin stated three times that the authorities had not harassed him. The judge explained that
Lin’s asylum application “look[ed] like it had been written two different times” because
5
Though we ordinarily review decisions of the BIA as opposed to that of an
immigration judge, Abdulai v. Ashcroft, 239 F.3d 542, 548-49 (3d Cir. 2001), in this case,
the BIA summarily affirmed the decision, so the immigration judge’s decision constitutes
the “final agency determination,” and is therefore the decision under review. 8 C.F.R. §
1003.1(a)(7)(iii) (2003).
6
Petitioner relies on Balasubramanrim, 143 F.3d 157, in which this Court held that a
credibility determination by the BIA “was not reasonable because the airport interview
alone . . . does not serve as a valid ground upon which to base a finding that an asylum
applicant is not credible.” Id. at 164 (internal quotation marks omitted). Here, however,
the credibility determination does not rest solely on an airport interview, but also upon the
Credible Fear Interview where Lin was represented by counsel.
6
there were internal contradictions. The judge also remarked upon Lin’s demeanor, noting
his “feigned inability to respond” and “his hesitation.” Because of Lin’s contradictions
and inconsistencies, the evidence presented by Lin would not compel any reasonable
factfinder to find that his claims were credible. The immigration judge’s findings
regarding Lin’s asylum claim are supported by substantial evidence.
Lin’s request for withholding of removal also fails. Since the asylum standard is
more lenient than the withholding standard, failure to establish eligibility for asylum
forecloses eligibility for withholding of removal. Ghaly v. INS, 58 F.3d 1425, 1429 (9th
Cir. 1995). Similarly, Lin’s claim for relief under the CAT fails because he must
establish that it is “more likely than not” that he would be tortured if deported. 8 C.F.R. §
208.16(c)(2). Given the inconsistencies and contradictions detailed above, the
immigration judge’s conclusion that Lin did not meet this burden is supported by
substantial evidence.7
IV.
For the foregoing reasons, we will affirm the BIA’s Order.
7
Petitioner also criticizes the immigration judge’s “reading” of the State Department
Profile in assessing the substantive merits of Lin’s claims. The judge relied on the Profile
to conclude there was no pattern or practice of homosexual persecution in China. We
find no error in his reasonable interpretation of this relevant document.
7
TO THE CLERK:
Please file the foregoing opinion.
/s/ Anthony J. Scirica
Chief Judge
8