Bin Lin v. U.S. Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DEC 31, 2008
No. 08-12478 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A98-548-604
BIN LIN,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(December 31, 2008)
Before BLACK, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
Bin Lin, a native and citizen of China, petitions for review of the denial of
his applications for asylum and withholding of removal under the Immigration and
Nationality Act and the United Nations Convention Against Torture and Other
Cruel, Inhuman, or Degrading Treatment or Punishment. INA § 241(b)(3), 8
U.S.C. § 1231(b)(3); 8 C.F.R. § 208.16(c). Lin argues that the Board failed to
consider all the evidence he introduced regarding his religious persecution. We
grant Lin’s petition, and we vacate and remand for further proceedings.
We review de novo the legal decision of the Board. D-Muhumed v. U.S.
Att’y Gen., 388 F.3d 814, 817 (11th Cir. 2004). We review its findings of fact to
determine if the decision is “‘supported by reasonable, substantial, and probative
evidence on the record considered as a whole.’” Al Najjar v. Ashcroft, 257 F.3d
1262, 1284 (11th Cir. 2001) (quoting Lorisme v. INS, 129 F.3d 1441, 1444–45
(11th Cir. 1997)). Credibility determinations are likewise reviewed under the
substantial evidence test. D-Muhumed, 388 F.3d at 817. “The trier of fact must
determine credibility, and this [C]ourt may not substitute its judgment for that of
the Board with respect to credibility findings.” Id. “To reverse [those] fact
findings, we must find that the record not only supports reversal, but compels it.”
Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003)(citing Fahim v.
U.S. Att’y Gen., 278 F.3d 1216, 1218 (11th Cir. 2002)).
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The record does not compel a finding that Lin’s testimony was credible.
There were discrepancies in Lin’s application and his testimony at the asylum
hearing regarding the number of Bibles that he smuggled inside China. Lin alleged
that Jiahui Ye asked him to travel to Xiamen to transport the Bibles, but Ye’s letter
allows an inference that Lin instead went to Xiamen to proselytize. Lin also
testified that he was beaten severely in the reeducation camp, but his application
stated only that he had “suffered a lot.”
The Board failed, however, to make a clear or cogent finding as to Lin’s
evidence that he was detained in the reeducation camp on the basis of his religious
activity. The Board could not rely on its adverse credibility determination to deny
the application when it failed to consider all of Lin’s corroborating evidence.
Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1287 (11th Cir. 2005). Lin offered
excerpts from the 2005 County Report and 1998 Profile of Asylum Claim and
Country Conditions that stated that the government had harassed and detained
members of unregistered churches. Lin also submitted a government document
stating that he had been incarcerated in a Chinese reeducation camp because he had
“participated in an unregistered church.” The immigration judge found these
documents credible and entitled to “great weight.” The Board offered no response
to Lin’s evidence that he was incarcerated for his religious practice.
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The Board erred by failing to consider all the evidence Lin submitted to
substantiate his allegation of religious persecution. We GRANT Lin’s petition,
VACATE the order that dismissed Lin’s appeal, and REMAND for the Board to
consider all corroborating evidence submitted by Lin to determine whether Lin was
incarcerated on the basis of his religious activity.
PETITION GRANTED.
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