Lin v. Attorney General of United States

IMG-195 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-1785
___________
BING LIN,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A095-687-579)
Immigration Judge: Honorable Miriam K. Mills
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 12, 2010
Before: SCIRICA, SMITH and WEIS, Circuit Judges
Opinion filed: May 19, 2010
___________
OPINION
___________
PER CURIAM.
Petitioner, Bing Lin, seeks review of the Board of Immigration Appeals’
(BIA) final order of removal. For the following reasons, we will deny her petition.
I.
Lin, a native and citizen of China, entered the United States without proper
``documentation in September 2004 and was charged with removability under INA §
212(a)(7)(A)(i)(I) [8 U.S.C. § 1182(a)(7)(A)(i)(I)]. Lin sought asylum, withholding of
removal, and relief under the Convention Against Torture (CAT) on the ground that she
had been forced to abort a pregnancy shortly before she left the country. See 8 U.S.C. §
1101(a)(42).
Lin testified to the circumstances surrounding the abortion at her removal
hearing. Lin told the court that the incident occurred in January 2004, when she was
twenty-four years old, unmarried, and living at home with her parents in Xiaoao Town,
Lianjiang County of Fujian Province. She was at least one month pregnant at the time.
Lin explained that in Xiaoao Town, all unmarried women were required to report to the
local government for a mandatory gynecological checkup in January, but she did not do
so. As a result, several days after failing to appear for her appointment, government
officials arrived at her home, took her to the hospital, and forced her to take a pill to abort
her pregnancy. Lin stated that she was also ordered to pay a fine for her unlawful
pregnancy, and, although she initially refused to pay it, she was arrested and detained
until her father went to the police station and made the payment. Lin told the court that,
after the abortion, village elders had harassed her and her family, and that she was afraid
to go home because the villagers are still looking for her.
In support of her applications, Lin submitted a document titled “Family
planning birth control surgery certificate” from the Xiaoao Clinic confirming that she had
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undergone “early artificial labor.” (AR 000228.) Lin also claimed that her parents wrote
a letter on her behalf, but she did not have the letter with her. Lin did not submit any
other letters or affidavits to verify her story.
The government disputed the authenticity of the family planning certificate
by submitting a Department of Homeland Security (DHS) report stating that an
immigration officer had investigated the certificate and had determined that it was
fraudulent.
Following the hearing, the IJ denied Lin’s applications for asylum on the
ground that she had failed to satisfy her burden of proof. Lin filed a timely notice of
appeal to the BIA. While her appeal was pending, Lin filed a motion asking the IJ to
reconsider her case in light of two new pieces of evidence: the letter from her parents that
she had mentioned at her hearing, and an affidavit of her own supplying the court with the
details of her story that the IJ had found lacking. Because the BIA had already taken
jurisdiction of the case, the IJ forwarded her motion to the BIA. See 8 C.F.R. §
1003.23(b)(1).
Upon review, the BIA affirmed the IJ’s decision denying Lin’s applications
for asylum, withholding of removal, and relief under the CAT, and denied her motion for
reconsideration.1 Lin now seeks review of the BIA’s decision.
1
The government filed a motion for summary affirmance, but the Board
denied its motion and issued a written opinion.
3
II.
We have jurisdiction to review the BIA’s order of removal under 8 U.S.C. §
1252(a)(1). When, as in this case, the BIA issues a decision on the merits and not simply
a summary affirmance, we review the BIA’s, not the IJ’s, decision. Gao v. Ashcroft, 299
F.3d 266, 271 (3d Cir. 2002). We will sustain the BIA’s decision if there is substantial
evidence in the record to support it. Zubeda v. Ashcroft, 333 F.3d 463, 471 (3d Cir.
2003). Under this deferential standard, the BIA’s decision will be upheld “unless the
evidence not only supports a contrary conclusion, but compels it.” Id.
III.
On appeal, Lin first argues that the IJ erred in applying the provisions of the
REAL ID Act of 2005 to her case because she filed her asylum application before the Act
became effective in May 2005. When she raised this argument to the BIA, the majority of
the panel members agreed that the Act did not apply to her claims, but deemed the IJ’s
error harmless because it found no clear error under pre-REAL ID Act standards.2 Lin
now argues that the BIA erred in deeming the error harmless, and requests that the matter
be remanded to the IJ for consideration under the appropriate standard. We see no error
in the BIA’s decision to evaluate the IJ’s findings of fact under the proper legal standard.
2
One member of the panel dissented, stating that he would instead remand
the matter to the IJ.
4
Next, Lin challenges the agency’s reliance on the DHS investigation report
to reject the authenticity of the “Family planning birth control surgery certificate” that she
submitted to corroborate her claim. Lin argues that the agency’s reliance on this report
violated her due process rights because the report contained multiple levels of hearsay and
was completely unreliable. See Ezeagwuna v. Ashcroft, 325 F.3d 396, 405 (3d Cir.
2003). We need not reach this argument, however, because even assuming that the
abortion certificate is authentic, substantial evidence supports the BIA’s finding that it
was reasonable to expect more corroboration and that there was no satisfactory
explanation for its absence. See Toure v. Att’y Gen., 443 F.3d 310, 323 (3d Cir. 2006).
As the IJ explained, Lin failed to provide a reasonable explanation for the absence of
letters or affidavits from her parents, whom she claims were both involved in her coerced
abortion. In addition, Lin failed to explain why she did not submit any independent
corroboration from her aunt, who allegedly obtained the abortion certificate on her behalf.
Given the absence of this evidence, and considering the record as a whole, we agree with
the BIA and the IJ that Lin failed to meet her burden of proof. See, e.g., Chen v.
Gonzales, 434 F.3d 212, 220 (3d Cir. 2005) (holding that substantial evidence supported
the IJ’s determination that asylum applicant failed to corroborate her forced-abortion
claim).
Lin next argues that the IJ improperly “took over” the government’s cross-
examination at the hearing, and “turn[ed her] testimony inside out regarding a minor point
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far outside the periphery of [her] claim.” (Br. 18.) This misconduct, Lin argues,
“indicates a predisposition to focusing on minor points in [her] claim rather than
reviewing the evidence as a whole.” (Br. 18.) We have carefully reviewed the record and
cannot agree; nothing in the record suggests to us that the IJ failed to fully and fairly
adjudicate Lin’s case.3
Finally, Lin argues that the BIA abused its discretion in denying her motion
to reopen. We disagree, as Lin plainly failed to satisfy the standard for reopening—i.e.,
she failed to demonstrate that the additional evidence was unavailable or undiscoverable
at the time of her initial removal hearing. See 8 C.F.R. § 1003.2(c)(1).
We have considered Lin’s remaining arguments and conclude that they are
without merit. Therefore, we will deny the petition for review.
3
To the extent that Lin argues that the IJ erred in failing to review her
motion to reconsider, we note that this was entirely proper, as the IJ lacked jurisdiction to
do so. See 8 C.F.R. § 1003.23(b)(1) (providing that an IJ may not reconsider or reopen a
case in which jurisdiction is vested with the BIA).
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