Shu-Yen Lin v. William Barr ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 22 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHU-YEN LIN, AKA Shu Yen Chuang-Lin, No. 16-70457
AKA Shuyen Deglow, AKA Shu Yan Lin,
AKA Suyan Lin, AKA Lin Su-Yan, Agency No. A075-284-745
Petitioner,
MEMORANDUM*
v.
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 13, 2019
San Francisco, California
Before: M. SMITH, WATFORD, and HURWITZ, Circuit Judges.
Shu-Yen Lin petitions for review of two decisions of the Board of
Immigration Appeals that affirmed the Immigration Judge’s finding of
removability, denied her application for a waiver of inadmissibility, and denied her
application for asylum, withholding of removal, and protection under the
Convention Against Torture. We deny her petition for review.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
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1. Substantial evidence supports the IJ’s conclusion that the government
demonstrated by clear and convincing evidence that Lin had procured a visa “by
fraud or willfully misrepresenting a material fact,” 8 U.S.C. § 1182(a)(6)(C)(i),
which rendered her removable under 8 U.S.C. § 1227(a)(1)(A). Lin could qualify
for her visa only if, as relevant here, she had been employed in a managerial
capacity for at least one year in Taiwan. Id. § 1153(b)(1)(C). The petition filed on
her behalf by her putative new employer represented that Lin had been employed
for several years as an accounting manager at Win Win Advertising Co. The IJ
found this material fact false, and that finding is supported by substantial evidence.
For example, Lin’s brother (the vice president of Win Win) admitted during his
criminal trial that he “falsely documented” Lin as a manager of Win Win for U.S.
immigration purposes. The record also permitted the IJ to draw the inference “that
the misrepresentation was deliberate and voluntary”—in other words, done at Lin’s
behest or with her knowledge. Forbes v. INS, 48 F.3d 439, 442 (9th Cir. 1995).
Lin contends that the Taiwanese court and tax records relied on by the
government were inadmissible hearsay and not properly authenticated. The IJ may
consider “probative” hearsay so long as its admission is “fundamentally fair.”
Cunanan v. INS, 856 F.2d 1373, 1374 (9th Cir. 1988). The Taiwanese courts’
adjudication of the very issue before the IJ—whether Lin worked in a managerial
capacity for Win Win—is undoubtedly probative, and Lin was “allowed to
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examine,” and “given ample time to produce substantial evidence to rebut,” the
court and tax records. Angov v. Lynch, 788 F.3d 893, 899 (9th Cir. 2015). Many
of the court records were authenticated by an official seal in accordance with 8
C.F.R. § 1287.6(b), and all were accompanied by “some sort of proof that the
document is what it purports to be.” Padilla-Martinez v. Holder, 770 F.3d 825,
833 (9th Cir. 2014) (internal quotation marks omitted). While Agent Sacramento’s
testimony likely did not suffice to authenticate the tax records, their contents were
corroborated by the findings of a Taiwanese court. In sum, the court and tax
records were “reasonable, substantial, and probative evidence.” 8 U.S.C.
§ 1229a(c)(3)(A).
2. Our review of the BIA’s denial of a waiver of inadmissibility under 8
U.S.C. § 1227(a)(1)(H) is limited to “constitutional claims [and] questions of law.”
8 U.S.C. § 1252(a)(2)(B)(ii), (a)(2)(D); see San Pedro v. Ashcroft, 395 F.3d 1156,
1157–58 (9th Cir. 2005). Here, the BIA applied the governing legal standard from
Matter of Tijam, 22 I. & N. Dec. 408 (BIA 1998), and considered each relevant
factor. See Xiao Fei Zheng v. Holder, 644 F.3d 829, 834 (9th Cir. 2011). We lack
jurisdiction to review Lin’s contention that the BIA did not sufficiently discuss her
equities, which is “inherently intertwined” with the Board’s “assessment of the
facts.” Mendez-Castro v. Mukasey, 552 F.3d 975, 979 (9th Cir. 2009). Contrary to
Lin’s contention, consideration of her outstanding Taiwanese arrest warrant was
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not legal error because 8 U.S.C. § 1227(a)(1)(H) “imposes no limitations on the
factors that the Attorney General [or the BIA] may consider in determining who,
among the class of eligible aliens, should be granted relief.” INS v. Yueh-Shaio
Yang, 519 U.S. 26, 30 (1996).
3. Lin’s application for asylum was denied on the ground that she failed to
prove a well-founded fear of future persecution. See 8 C.F.R. § 1208.13(b)(2).
Considering the totality of the circumstances, the BIA’s adverse credibility finding
was supported by substantial evidence, including Lin’s use of a fraudulent
Philippines passport and her lawyer’s submission of a false sale document for a
Miami home. See Shrestha v. Holder, 590 F.3d 1034, 1044 (9th Cir. 2010). Even
if the IJ’s 2015 credibility finding was insufficiently clear under our case law, the
BIA made an explicit finding. Cf. Ming Dai v. Sessions, 884 F.3d 858, 867 (9th
Cir. 2018).
Because “[w]e have long distinguished persecution from prosecution,” Li v.
Holder, 559 F.3d 1096, 1108 (9th Cir. 2009), Lin bore the burden of establishing a
reasonable probability that some aspect of her potential prosecution in Taiwan
would rise to the level of persecution. The record does not compel acceptance of
any of Lin’s theories. First, the IJ could reasonably find that Taiwanese officials
have a legitimate, non-pretextual desire to investigate Lin’s involvement in bribery
and document fraud. See Dinu v. Ashcroft, 372 F.3d 1041, 1044–45 (9th Cir.
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2004). Second, while the record reflects concerns with the independence of the
Taiwanese judiciary, the country-conditions report reinforces the BIA’s conclusion
that Lin failed to show a reasonable probability that she will receive an unfair trial.
See Kazlauskas v. INS, 46 F.3d 902, 906 (9th Cir. 1995). Third, the IJ permissibly
relied on the country-conditions report’s assessment of the general treatment of
prisoners, as opposed to news articles regarding the former president of Taiwan, to
find that Lin had not demonstrated a reasonable probability of mistreatment in
prison. For these same reasons, substantial evidence supports the IJ’s
determination that Lin is ineligible for withholding of removal and protection
under the Convention Against Torture. See 8 C.F.R. § 1208.16(b)(2), (c)(2).
PETITION FOR REVIEW DENIED.