Lin v. Atty Gen USA ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
9-25-2006
Lin v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-3313
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006
Recommended Citation
"Lin v. Atty Gen USA" (2006). 2006 Decisions. Paper 421.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/421
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 2006 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NOT PRECEDENTIAL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. 05-3313
YAN LIN,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A77-993-615
(U.S. Immigration Judge: Honorable Henry S. Dogin)
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 11, 2006
Before: SCIRICA, Chief Judge, SLOVITER and BARRY, Circuit Judges
(Filed: September 25, 2006)
OPINION OF THE COURT
SCIRICA, Chief Judge.
Yan Lin seeks review of the Board of Immigration Appeals’ final order affirming
the decision of the Immigration Judge to deny her application for political asylum,
withholding of removal, and relief under Article 3 of the United Nations Convention
Against Torture. We have jurisdiction to review the Board’s order under 8 U.S.C. §
1252. We will deny the petition for review and affirm the Board’s order.
I.
Yan Lin is a native and citizen of the People’s Republic of China. She was born
on November 25, 1978 in China. Lin contends she seeks political asylum in the United
States because the Chinese government forced her to have an abortion, she practiced
Falun Gong in China, and she will face future persecution due to her illegal flight from
China.
Lin illegally entered the United States on October 10, 2003 using fraudulent travel
documents. A deportation officer interviewed Lin in Mandarin, her native language,
under oath upon her arrival at Los Angeles International Airport. During that interview,
Lin stated she had come to the United States to work. In a second deportation interview
on October 22, 2001, Lin contended she sought protection because she had practiced
Falun Gong in China.
On December 5, 2003, Lin filed a petition for asylum and withholding of removal.
In the petition, Lin contended Chinese officials had forced her to have an abortion in May
2001 because she had become pregnant out of wedlock and in violation of China’s family
planning policy. Furthermore, in the petition Lin stated she had practiced Falun Gong
starting in May 2001 at an aunt’s house and Chinese officials had subsequently arrested,
2
detained, and tortured her aunt for her practice. Lin expressed fear she would be detained
and tortured if deported to China because of her illegal exit.
The Immigration and Naturalization Service first served Lin with a notice to
appear for removal proceedings on October 24, 2001. Lin petitioned for political asylum,
withholding of removal, and relief under CAT. After a hearing on January 7, 2004, the
Immigration Judge denied the application on all grounds and ordered Lin’s removal. Lin
filed a timely appeal and the Board of Immigration Appeals affirmed.
II.
We generally only review final orders of the Board when the Board issues a
decision on the merits. See Li v. Attorney General, 400 F.3d 157, 162 (3d Cir. 2005);
Abdulai v. Ashcroft, 239 F.3d 542, 548–49 (3d Cir. 2001). Where the Board adopts the
reasoning of the IJ with some discussion of the bases for the IJ’s decision, we also review
the order of the IJ. He Chun Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004). We use
a substantial evidence standard to review factual findings, including credibility
determinations, 8 U.S.C. § 1252(b)(4)(B); Tarrawally v. Ashcroft, 338 F.3d 180, 184 (3d
Cir. 2003), as well as findings of an applicant’s past persecution or “well-founded fear of
future persecution,” Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002).
Under the substantial evidence standard, findings are upheld if a reasonable fact
finder could reach a similar conclusion based on the record. INS v. Elias-Zacarias, 502
U.S. 478, 481 (1992). We will grant the petition for review only if the adverse credibility
3
determinations are unsupported by the record or are based on mere conjecture. Gao, 299
F.3d at 272. Discrepancies in an applicant’s testimony must involve the “heart of the
asylum claim” to support an adverse credibility finding. Id.
III.
An applicant for political asylum must demonstrate her refugee status by showing
past persecution or a well-founded fear of future persecution. 8 U.S.C. § 1158(b)(1)(B);
8 U.S.C. 1101(a)(42)(A); Gao, 299 F.3d at 272. For the Attorney General to grant a
withholding of removal order, an applicant must demonstrate by a “clear probability” that
her life or freedom would be threatened in the proposed country of deportation. 8 U.S.C.
§ 1231(b)(3)(A); INS v. Stevic, 467 U.S. 407, 430 (1984). An applicant for protection
under the Convention Against Torture similarly has the burden to demonstrate “that it is
more likely than not that he or she would be tortured if removed to the proposed country
of removal.” 8 C.F.R. § 208.16(c)(2). To support all three claims for relief, the applicant
must provide credible testimony and evidence. Gao, 299 F.3d at 272.
Here, the Board found no error in the IJ’s conclusion that the applicant failed to
provide credible testimony to support her claims. The Board cited the discrepancies
between Lin’s sworn airport statement, her “credible fear” interview, and her testimony at
the hearing before the IJ. The Board noted Lin’s failure to mention her forced abortion at
the first two official interviews significantly undermined her credibility. Airport
interviews are not necessarily “valid grounds upon which to base a finding that an
4
applicant is not credible,” Dia v. Ashcroft, 353 F.3d 228, 257 (3d Cir. 2003) (quoting
Balasubramanrim v. INS, 143 F.3d 157, 164 (3d Cir. 1998)), especially when the
applicant has difficulty comprehending the questions, Balasubramanrim, 143 F.3d at 162.
But here, Lin testified the airport interview was conducted in her native language, she
understood the questions, and she did not challenge the interviewer’s conduct or any of
her own responses. See He Chun Chen, 376 F.3d at 224 (finding the “IJ and BIA
reasonably relied on . . . contradictory statements” made at the airport interview and
before the IJ in determining the applicant lacked credibility). Accordingly, the IJ and the
Board did not err in relying upon the airport statement to find material inconsistencies in
Lin’s statements.
Similarly, the record contains inconsistencies about the extent of Lin’s Falun Gong
involvement. In her second interview, Lin contended she practiced Falun Gong at her
aunt’s house for a three month period and she feared persecution on this basis if she
returned to China. But at the IJ hearing, Lin admitted she did not know much about Falun
Gong, she only went to her aunt’s house “once in a while,” and she had never practiced
Falun Gong after her arrival in the United States. These inconsistencies are sufficient to
support the IJ’s and the Board’s adverse credibility determination.
We will not uphold the conclusions of the IJ or the Board if based on unsupported
personal opinions. See Dia, 353 F.3d at 250. But here, the Board provided specific,
cogent reasons to support an adverse credibility determination that went to the heart of
5
Lin’s claims for asylum. A reasonable fact finder would not necessarily reach an opposite
conclusion.
IV.
For the foregoing reasons, we will deny the petition and affirm the order of the
Board.
6