Minduan Lin v. Holder , 423 F. App'x 741 ( 2011 )

FILED
NOT FOR PUBLICATION MAR 24 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MINDUAN LIN, ) No. 07-72176
)
Petitioner, ) Agency No. A096-149-572
)
v. ) MEMORANDUM *
)
ERIC H. HOLDER Jr., Attorney )
General, )
)
Respondent. )
)
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 16, 2011 **
San Francisco, California
Before: NOONAN, FERNANDEZ, and CLIFTON, Circuit Judges.
Minduan Lin, a native and citizen of China, petitions for review of the Board
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without oral
argument. Fed. R. App. P. 34(a)(2).
of Immigration Appeals’ denial of his application for asylum,1 withholding of
removal,2 and Convention Against Torture (CAT) relief.3 We deny the petition.
The BIA’s determination that an alien is not eligible for asylum must be
upheld if “‘supported by reasonable, substantial, and probative evidence on the
record considered as a whole.’” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.
Ct. 812, 815, 117 L. Ed. 2d 38 (1992). “It can be reversed only if the evidence
presented . . . was such that a reasonable factfinder would have to conclude that the
requisite fear of persecution existed.” Id.; see also Farah v. Ashcroft, 348 F.3d
1153, 1156 (9th Cir. 2003). When an alien seeks to overturn the BIA’s adverse
determination, “he must show that the evidence he presented was so compelling
that no reasonable factfinder could fail to find the requisite fear of persecution.”
Elias-Zacarias, 502 U.S. at 483–84, 112 S. Ct. at 817. The same standard applies
to credibility determinations. See Lanza v. Ashcroft, 389 F.3d 917, 933 (9th Cir.
2004); Alvarez-Santos v. INS, 332 F.3d 1245, 1254 (9th Cir. 2003). However,
when a determination is based upon credibility, “‘a specific, cogent reason’” for
1
8 U.S.C. § 1158.
2
8 U.S.C. § 1231(b)(3).
3
United Nations Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, Dec. 10, 1984, Treaty Doc. No. 100–20,
1465 U.N.T.S. 85 implemented at 8 C.F.R. § 1208.18.
2
disbelieving the alien must be offered. Guo v. Ashcroft, 361 F.3d 1194, 1199 (9th
Cir. 2004).
We have reviewed the record and are satisfied that the BIA’s decision was
supported by substantial evidence.4 The BIA ultimately determined that Lin lacked
credibility because he submitted a fraudulent document that went to the heart of his
asylum claim. See Li v. Ashcroft, 378 F.3d 959, 962 (9th Cir. 2004). While there
are times when the mere presentation of a fraudulent document is not enough to
undermine credibility,5 here Lin submitted the false medical record to bolster his
claim that he had been jailed and physically abused.6 Moreover, he had every
opportunity to explain his submission of that false document,7 but gave wholly
unsatisfactory explanations.8 Thus, we are unable to say that a “reasonable
4
Because the BIA cited Matter of Burbano, 20 I&N Dec. 872, 874 (BIA
1994) and also gave its own specific reason that Lin was not credible, we review
both the determinations of the BIA and those of the IJ. See Joseph v. Holder, 600
F.3d 1235, 1240 (9th Cir. 2010); cf. Tamang v. Holder, 598 F.3d 1083, 1088 (9th
Cir. 2010).
5
See Yeimane-Berhe v. Ashcroft, 393 F.3d 907, 911–12 (9th Cir. 2004).
6
See Khadka v. Holder, 618 F.3d 996, 1000–01 (9th Cir. 2010); Desta v.
Ashcroft, 365 F.3d 741, 745 (9th Cir. 2004); Wang v. INS, 352 F.3d 1250, 1258
(9th Cir. 2003).
7
See Khadka, 618 F.3d at 1001 n.4.
8
See Wang, 352 F.3d at 1258; In re O-D-, 21 I&N Dec. 1079, 1082 (BIA
(continued...)
3
factfinder would have to conclude that the requisite fear of persecution existed.”
Elias-Zacarias, 502 U.S. at 481, 112 S. Ct. at 815.
Because Lin did not meet his burden regarding asylum, he necessarily failed
to establish eligibility for withholding of removal. See Ghaly v. INS, 58 F.3d
1425, 1429 (9th Cir. 1995).
Finally, the evidence in the record does not compel a determination that it is
more likely than not that Lin would be tortured in China.9 Thus, he is not entitled
to CAT relief. See Wakkary v. Holder, 558 F.3d 1049, 1067–68 (9th Cir. 2009);
Almaghzar v. Gonzales, 457 F.3d 915, 922–23 (9th Cir. 2006); Singh v. Gonzalez,
439 F.3d 1100, 1113 (9th Cir. 2006).
Petition DENIED.
8
(...continued)
1998). Moreover, while there is little doubt that Lin could easily have obtained
statements from others on the subject, he did not do so. See Unuakhaulu v.
Gonzales, 416 F.3d 931, 938 (9th Cir. 2005).
9
We lack jurisdiction to consider Lin’s unexhausted claim that simply
because he illegally left China, he will be subject to torture upon his return. See
Cortez-Acosta v. INS, 234 F.3d 476, 480 (9th Cir. 2000).
4