Lin v. Atty Gen USA

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
2-6-2007
Lin v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-5069
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 05-5069
___________
JIN LIN,
Petitioner,
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.
________________________
On Petition for Review from
the Board of Immigration Appeals
BIA No: A96-338-740
Immigration Judge: Henry S. Dogin
______________________
Submitted Under Third Circuit L.A.R. 34.1(a)
January 23, 2007
Before: SCIRICA, Chief Judge, FUENTES and CHAGARES,
Circuit Judges.
(Opinion Filed: February 6, 2007)
___________
OPINION
___________
FUENTES, Circuit Judge.
Jin Lin’s claims for asylum, withholding of removal, and protection under the
Convention Against Torture (CAT) were denied by an immigration judge (IJ) and the
Board of Immigration Appeals (BIA). Lin now seeks review of these decisions. For the
reasons that follow, we will deny his petition.
I.
Inasmuch as we write this memorandum opinion only for the convenience of the
parties who are familiar with the facts, we need not set forth the background of the case at
length. Lin claims that in 2001 he fled political and religious persecution in China on
account of his membership in Zhuan Gong, a religious group similar to Falun Gong. Lin
entered the Unites States without inspection on December 24, 2001. On December 26,
2002, he applied for asylum. He was interviewed by an asylum officer on January 17,
2003. Shortly thereafter, on January 23, 2003, the Department of Homeland security
issued Lin a Notice to Appear, charging him with being present in the United States in
violation of the Immigration and Nationality Act (“INA”) § 212(a)(6)(A)(i). Lin then
supplemented his petition for asylum with an application for withholding of removal and
protection under CAT, and his case was brought before the IJ at a removal hearing on
February 20, 2003. The IJ denied Lin’s petition in its entirety, having found Lin’s claim
to be a Zhuan Gong practitioner to be incredible, and ordered Lin removed to China. In
October 2005, the BIA dismissed Lin’s appeal without opinion.
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II.
Where, as here, an opinion issued by the BIA essentially adopts the opinion of the
IJ, we review the latter. See Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir. 2002). “Factual
findings, such as credibility determinations, are ‘conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.’” Reynoso-Lopez v.
Ashcroft, 369 F.3d 275, 278 (3d Cir. 2004) (quoting 8 U.S.C. § 1252(b)(4)(B)). Thus, on
appeal, we must establish whether the BIA’s factual determinations are supported by
substantial evidence. Id.Section 208(b) of the INA, 8 U.S.C. § 1158(b), gives the Attorney General
discretion to grant asylum to a “refugee,” under certain circumstances. Generally, a
“refugee” is “any person who is outside any country of such person’s nationality . . . who
is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of
the protection of, that country because of persecution or a well-founded fear of
persecution on account of race, religion, nationality, membership in a particular social
group, or political opinion.” INA § 101(a)(42)(A); 8 U.S.C. § 1101(a)(42)(A). The
burden is on the applicant to show that she or he is a refugee. 8 C.F.R. § 1208.13(a).
Applicants for asylum may establish refugee status by showing either that they have been
subject to past persecution or they have a well-founded fear of future persecution. The
persecution, however, must be “on account of” one of the five statutory bases. 8 C.F.R. §
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1208.13(b). An applicant who establishes that he has suffered past persecution is
presumed to have a well-founded fear of persecution. 8 C.F.R. § 1208.13(b)(1).
The decision to grant or deny an applicant asylum is discretionary even if the
applicant establishes that she or he meets the statutory eligibility requirements. The
government however, must grant withholding of removal, with certain exceptions, to an
applicant if he demonstrates a clear probability of persecution—in other words, in this
case, that it is more likely than not that Lin will be persecuted if he returns to China. See
Gabuniya v. Att’y Gen., 463 F.3d 316, 320-21 (3d Cir. 2006). Similarly, to qualify for
relief under the CAT, Lin must demonstrate that it is more likely than not that he will be
tortured if he is removed to China. See id. (citing 8 C.F.R. § 208.16(c)(2)).
III.
A.
Lin argues on appeal that his due process rights were violated because the IJ told
Lin at his hearing that he need not bother to recount his knowledge of Zhaun Gong in
order to support his claimed fear of future persecution. In his oral opinion, the IJ
explained that on the date of Lin’s asylum interview, Lin knew nothing about Zhaun
Gong and that Lin could have subsequently gained the information in preparation to
testify at the hearing. The IJ then stated that even if Lin were to testify on the topic he
would not give that testimony substantial weight. The IJ agreed to assume that Lin had
present knowledge of Zhaun Gong practices.
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As an alien facing removal, Lin is entitled to due process. Chong v. District
Director INS, 264 F.3d 378, 386 (3d Cir. 2001). In adjudicative contexts such as this one,
due process requires three things: “An alien: (1) is entitled to fact finding based on a
record produced before the decision maker and disclosed to him or her; (2) must be
allowed to make arguments on his or her own behalf; and (3) has the right to an
individualized determination of his [or her] interests.” Abdulai v. Ashcroft, 239 F.3d
542, 549 (3d Cir. 2001) (internal citation and quotation marks omitted).
We believe the IJ’s request that the parties stipulate to Lin’s present knowledge of
Zhaun Gong did not hamper Lin’s ability to make his argument because the IJ accepted
that Lin possessed this knowledge. Indeed, we agree with the government that the IJ
actually helped Lin to focus on more critical aspects of the case, when he suggested to
Lin that he would not give general testimony about Zhaun Gong much weight. The IJ’s
conduct at the hearing thus comported with due process.
B.
Lin also contests the IJ’s adverse credibility determination, which led the IJ to
deny all of Lin’s claims. The IJ’s adverse credibility determination was threefold. First,
the IJ did not believe that Lin had practiced Zhaun Gong for any period of time before
arriving in the Unites States (no less, the approximately five years claimed by Lin)
because according to the asylum interviewer, Lin was unable to answer any questions
about Zhaun Gong practices. Second, Lin testified that after Chinese officials discovered
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his Zhaun Gong practice, they required him to check in with the “local committee,” but
his asylum application stated that he had to report to the police station—two very
different things in China. The IJ described this latter inconsistency as only “moderate,”
but based on these two inconsistencies together, he sought some corroboration of Lin’s
claims of Zhaun Gong practice. Thus, third, when Lin failed to produce any
corroboration, the IJ found him incredible.
We have held that “the BIA may sometimes require otherwise-credible applicants
to supply corroborating evidence in order to meet their burden of proof.” Abdulai, 239
F.3d at 554. In Abdulai, we noted that the BIA’s rule on corroboration comprises a
three-part inquiry: (1) an identification of the facts for which “it is reasonable to expect
corroboration;” (2) an inquiry as to whether the applicant has provided information
corroborating the relevant facts; and if he or she has not, (3) an analysis of whether the
applicant has adequately explained his or her failure to do so. See id.Here, the IJ reasonably expected corroboration of Lin’s story. Lin did not contest
that he was unable to discuss Zhaun Gong practices at his asylum interview. Whether Lin
practices Zhaun Gong goes to the heart of his claim. The IJ expected corroboration
because Lin testified that several individuals, with whom he is in continuous contact, are
aware of his past and present Zhaun Gong practice — these include his father in China
and his current employer with whom he lives (Lin allegedly practices Zhaun Gong
postures in their shared home). But Lin offered no explanation for why he did not
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provide any corroborating evidence (not testimony, documents, or affidavits) from any of
these readily available sources. The inconsistencies in Lin’s testimony paired with his
failure to corroborate his story—and no adequate explanation for that failure—lead us to
conclude that substantial evidence supports the IJ’s adverse credibility determination.
IV.
Because the IJ felt Lin’s claim that he practiced Zhaun Gong was “not credible,
not believable, and . . . certainly not corroborated,” the IJ concluded that Lin had no
credible fear of past or future persecution, and certainly was under no threat of being
tortured if returned to China. We find no error in these conclusions. Therefore, having
determined that the remainder of Lin’s arguments lack merit, we will deny Lin’s petition
in its entirety.
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