Xiu Lin v. Sessions

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 21, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
XIU LIN, a/k/a Ziu Lin,
Petitioner,
v. No. 16-9535
(Petition for Review)
JEFF SESSIONS,* United States Attorney
General,
Respondent.
_________________________________
ORDER AND JUDGMENT**
_________________________________
Before KELLY, MATHESON, and McHUGH, Circuit Judges.
_________________________________
Xiu Lin, a native and citizen of the People’s Republic of China and proceeding
pro se as petitioner, seeks review of a Board of Immigration Appeals (BIA) order
affirming an Immigration Judge (IJ) removal order. The BIA dismissed Ms. Lin’s
requests for asylum, restriction on removal, and protection under the Convention
*
In accordance with Rule 43(c) of the Federal Rules of Appellate Procedure,
Jeff Sessions is substituted for Loretta E. Lynch as the respondent in this action.
**
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Against Torture (CAT). Exercising jurisdiction under 8 U.S.C. § 1252, we deny the
petition for review.
I. BACKGROUND
Ms. Lin entered the United States in March 2003 and was taken to Denver,
Colorado. Her parents had hired a smuggler to transport her from China but had not
paid his full fee, so the smuggler required Ms. Lin to work in a restaurant without pay
for two years. In 2005, she married a Chinese national. They have two children who
are United States citizens.
In October 2010, Ms. Lin was charged with removability as an alien present in
the United States without admission or parole. She conceded removability and
requested asylum, withholding of removal, and CAT protection. She claimed she
would be persecuted and tortured if returned to China because she is a practicing
Catholic.
A. Asylum Application, Pretrial Statement, and Immigration Court Testimony
Ms. Lin’s case hinges on her account of her 1998 arrest in China for
participation in an underground Catholic church.
In her asylum application, Ms. Lin described how the Chinese police treated
her: “During the interrogation, the police beat me, mistreated me and suppressed
me.” Admin. R. at 424. Her pretrial statement similarly recounted the episode:
“During her detention, she was interrogated, beaten, and mistreated by the police.
After her release, the police often went to her home to harass her.” Id. at 405.
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The IJ held several hearings. Ms. Lin was represented by counsel and
expanded on these allegations. She testified that she and her sister attended an
underground Catholic house church. In November 1998, Ms. Lin was arrested for
printing church calendars. She testified that the police detained her for seven days,
slapped her across the face, grabbed her hair and slammed her head on the table, and
beat her hand with a baton. The pain caused her to scream and lose consciousness.
The beatings, she said, damaged her legs and prevented her from attending the church
for half a year. She told no one of the beatings except her sister.
Ms. Lin testified that she initially did not reveal to the police the identity of
anyone in her underground church who directed her to print the calendars, but later in
the police interrogation after the beatings she identified a church member who had
done so. In contrast, on redirect examination at a later hearing, Ms. Lin testified that,
although the local priest took the lead in printing and distribution of the church
calendars, she told the police that she alone had done so.
Ms. Lin also testified that her sister was arrested in China for conducting a
Catholic mass. Although Ms. Lin had stated in her asylum application that this arrest
had occurred in January 2011, at the August 4, 2011 hearing she said her sister’s
arrest happened in January 2010. On further questioning by her attorney, Ms. Lin
stated that the arrest was in January 2011, seven months before the hearing.
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B. Immigration Judge Credibility Determinations
The IJ found Ms. Lin’s testimony not credible, citing discrepancies between
her testimony and her application documents concerning her November 1998 arrest.
The IJ also found internal inconsistencies in Ms. Lin’s testimony:
 she testified that she identified to the police the person who had
instructed her to print the church calendars and later testified that she
acted alone;
 she claimed that she was a devout Catholic, but she did not know the
identity of the Pope, and
 she testified that she and her husband belonged to the same Catholic
church, but later testified that her husband was a Protestant and did
not go to church with her.
The IJ also noted that Ms. Lin testified her sister’s arrest occurred in January
2010 and that she did not change her testimony until confronted with her pretrial
statement, which stated that the arrest happened in January 2011. The IJ rejected Ms.
Lin’s explanation that the inconsistency was a mistake given the proximity of the
arrest to the hearing (seven months).
The IJ found other inconsistencies. Ms. Lin testified that her mother paid
45,000 yuan to obtain her sister’s release from jail, contradicting her pretrial
statement and her sister’s letter, which both asserted the amount was 20,000 yuan.
The IJ rejected Ms. Lin’s explanation as to why she did not include that fact before
she testified that 25,000 of the 45,000 yuan payment was an unofficial bribe.
Ms. Lin testified that her sister was a church leader in China in 2001, but a
letter from her sister stated that she had become a church leader in 2010. The IJ also
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noted that Ms. Lin did not respond to questions about why her family had paid for her
to leave China but had not done the same for her sister.
Ms. Lin’s counsel called Ms. Lin’s co-parishioner and the principal at her
nephew’s school to testify about Ms. Lin’s practice of Catholicism in the United
States. But the IJ gave diminished weight to the testimony of this witness because
she had been in the hearing room at a prior hearing when Ms. Lin testified.
The IJ found implausible Ms. Lin’s testimony that she told no one at her
underground church in China, including the priest, that the police had beaten her.
She claimed she told only her sister, who eventually told church members. The IJ
also found implausible:
 that the church members would not know about such a serious
beating, inflicted on an allegedly active church member while
providing a service to the church, that prevented her from
walking or attending church for half a year;
 that the Chinese police checked on Ms. Lin every week following
her release from custody but did not arrest, inquire after, or
search for the individual she identified as the person who
instructed her to print the calendars;
 Ms. Lin’s claim that her family would not help her sister leave
China given Ms. Lin’s claims that her sister also suffered a police
beating; and
 Ms. Lin’s inability to remember the name or denomination of the
church where she was married when these details would be
important to her in light of her Catholic faith, for which she was
allegedly persecuted.
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C. Immigration Judge and Board of Immigration Appeals Decisions
Having found Ms. Lin not credible, the IJ denied Ms. Lin’s application for
asylum, withholding of removal, and CAT protection. Accordingly, the IJ ordered
Ms. Lin removed to China. Ms. Lin timely appealed to the BIA, challenging the IJ’s
credibility determination. The BIA affirmed the IJ’s findings and removal order. On
appeal to this court, Ms. Lin challenges the determination that she was not credible.1
II. STANDARD OF REVIEW
We review the BIA’s decision under a substantial evidence standard,
considering the record as a whole. Neri-Garcia v. Holder, 696 F.3d 1003, 1008 (10th
Cir. 2012). Under that standard, “[a]gency findings of fact are conclusive unless the
record demonstrates that any reasonable adjudicator would be compelled to conclude
to the contrary.” Sidabutar v. Gonzales, 503 F.3d 1116, 1122 (10th Cir. 2007)
(internal quotation marks omitted); see also 8 U.S.C. § 1252(b)(4)(B) (stating
“administrative findings of fact are conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary”).
“The IJ’s credibility assessment is a factual finding, and will ordinarily be
given great weight.” Htun v. Lynch, 818 F.3d 1111, 1118-19 (10th Cir. 2016)
(citation and internal quotation marks omitted). Credibility findings can be based on
1
Ms. Lin also contends generally that the agency should have considered
documentation she submitted, but she has not described the documents in question,
nor has she explained how the agency erred in failing to consider them. We therefore
do not address this argument. See United States v. Wooten, 377 F.3d 1134, 1145
(10th Cir. 2004) (“The court will not consider [appellate claims] adverted to in a
perfunctory manner, unaccompanied by some effort at developed argumentation.”
(internal quotation marks omitted)).
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“any inaccuracies or falsehoods” in an asylum applicant’s written or oral statements
“without regard to whether an inconsistency, inaccuracy, or falsehood goes to the
heart of the applicant’s claim.” § 1158(b)(1)(B)(iii).
When, as here, the BIA has issued a single-member decision, “we will not
affirm on grounds raised in the IJ decision unless they are relied upon by the BIA,
[but] we are not precluded from consulting the IJ’s more complete explanation of
those same grounds.” Maatougui v. Holder, 738 F.3d 1230, 1237 n.2 (10th Cir.
2013) (internal quotation marks and alterations omitted).
We liberally construe Ms. Lin’s pro se filings. See Garrett v. Selby Connor
Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). We do not, however, “take on
the responsibility of serving as the litigant’s attorney in constructing arguments and
searching the record.” Id. “[P]ro se parties [must] follow the same rules of
procedure that govern other litigants.” Id. (internal quotation marks omitted).
III. ASYLUM
The BIA based its decision solely on Ms. Lin’s lack of credibility. Under the
substantial evidence standard, we cannot conclude that any reasonable adjudicator
would be compelled to disagree with the BIA’s credibility finding. We start with the
asylum request.
To be eligible for asylum, an alien must first show that she is a “refugee.”
Wiransane v. Ashcroft, 366 F.3d 889, 893 (10th Cir. 2004). To establish refugee
status, the applicant must demonstrate that she has suffered past persecution or has “a
well-founded fear of [future] persecution on account of race, religion, nationality,
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membership in a particular social group, or political opinion.” 8 U.S.C.
§ 1101(a)(42)(A); Tulengkey v. Gonzales, 425 F.3d 1277, 1280 (10th Cir. 2005).
“The burden of proof is on the applicant to establish that [she] is a refugee.”
8 U.S.C. § 1158(b)(1)(B)(i).
A. Pretrial Documents and Testimony
As the BIA noted, Ms. Lin’s hearing testimony differed from her pretrial
written documents describing her experiences while under arrest in China in 1998.
Ms. Lin counters that her testimony was more detailed but not contradictory. She
explains that because her experience was a painful memory, she did not describe it
more fully in her March 2011 asylum application or in her July 2011 pretrial
statement.2
We agree Ms. Lin’s brief written descriptions of how the police treated her in
China do not conflict with her more detailed hearing testimony. We “must be
sensitive to the pressures bearing on persons seeking to escape persecution and make
allowances for omissions of detail in their early accounts of what befell them.”
Ismaiel, 516 F.3d at 1206. But here, counsel assisted in preparing the pretrial
documents well over a decade after Ms. Lin’s arrest and alleged beating. Thus,
“[t]he time elapsed since the alleged trauma and the assistance of counsel should
reduce the number of omitted items later elicited in testimony.” Id. These
2
Ms. Lin contends that the IJ did not allow her to provide this explanation, but
the record demonstrates that her attorney asked for an explanation, to which she
replied, “It was such a painful memory. I don’t even want to mention it.” Admin. R.
at 162.
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circumstances can “support[] an adverse credibility finding.” Id. Further, the agency
properly considered “all relevant factors,” including “the consistency of [Ms. Lin’s]
testimony with other evidence of record.” § 1158(b)(1)(B)(iii).
B. Inconsistent Testimony
The BIA also found Ms. Lin not credible based on her inconsistent testimony
as to whether she revealed to the Chinese police the identity of the person who told
her to print the church calendars. Ms. Lin first testified that she did not reveal the
name of anyone else involved in printing the calendars until she could not stand the
torture anymore. But she testified at a later hearing that she had told the police she
acted alone. She argues that her testimony at the later hearing was “not technically
inconsistent” with her earlier testimony. Aplt. Br. at 6. But her later testimony was
inconsistent because it did not mention that she had revealed the name of another
person involved in printing the calendars. Inconsistent statements are properly the
basis of an adverse credibility determination. See § 1158(b)(1)(B)(iii). Ms. Lin also
complains that the IJ did not allow her to explain this discrepancy. The record
reflects, however, that Ms. Lin was free to respond fully to the questions posed by
her attorney.
The BIA further discounted Ms. Lin’s credibility based on her inconsistent
testimony concerning the year her sister was arrested for conducting a Catholic mass
in China. After testifying that the date was January 2010, and after being shown her
prior statement, she changed her testimony to January 2011. Ms. Lin argues she was
“too excited emotionally so [she] mentioned the wrong time previously.” Aplt. Br. at
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12. But the BIA found this argument not persuasive because the arrest occurred just
seven months before Ms. Lin’s hearing, a relatively short time span that she could
have been expected to recollect.
C. Corroborative Evidence
The BIA evaluated Ms. Lin’s corroborative evidence and concluded that it was
insufficient to rehabilitate her inconsistent testimony. The BIA noted that the letter
from Ms. Lin’s sister did not support her assertion that their mother had to pay
45,000 yuan, rather than 20,000 yuan, to secure her sister’s release from jail. The
BIA also endorsed the IJ’s decision to give diminished weight to Ms. Lin’s witness
who had been present during an earlier hearing.
D. Substantial Evidence Review
Having reviewed the record under the deferential substantial evidence standard
of review, we hold that a reasonable adjudicator would not be compelled to conclude
that Ms. Lin must be considered credible.3 We therefore deny the petition on the
asylum request.
3
Ms. Lin also challenges the IJ’s remaining adverse credibility findings. We
do not address these issues because our review is limited to grounds relied on by the
BIA. See Xue v. Lynch, 846 F.3d 1099, 1103 (10th Cir. 2017) (“[I]n deference to the
agency’s own procedures, we will not affirm on grounds raised in the IJ decision
unless they are relied upon by the BIA in its affirmance.” (internal quotation marks
omitted)).
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IV. RESTRICTION ON REMOVAL AND CAT RELIEF
Our foregoing review of the BIA’s credibility determination applies with equal
force to Ms. Lin’s other requests for relief.
“The showing required for [restriction on] removal is more stringent tha[n] the
showing required for asylum.” Zhi Wei Pang v. Holder, 665 F.3d 1226, 1233
(10th Cir. 2012). To obtain such relief, “an applicant must demonstrate that there is a
clear probability of persecution” on one of the five enumerated grounds. Id. (internal
quotation marks omitted). And to be eligible for protection under the CAT, “an
individual must establish that it is more likely than not that he or she would be
tortured if removed to the proposed country of removal.” Id. at 1233-34 (internal
quotation marks omitted).
Having failed to meet the burden required for asylum, Ms. Lin’s claim for
restriction on removal necessarily fails. See id. at 1234 (holding that an applicant
who “fails to satisfy the lower burden of proof required for asylum . . . also fails to
satisfy the higher standard of eligibility for [restriction on] removal”).
To establish her CAT claim, Ms. Lin relies on the same evidence as for her
asylum claim, which the agency found not to be credible, so CAT relief also was
properly denied. See Ismaiel, 516 F.3d at 1206 (upholding the denial of CAT relief
based on adverse credibility finding).
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V. CONCLUSION
We deny the petition for review.
ENTERED FOR THE COURT,
Scott M. Matheson, Jr.
Circuit Judge
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