Lin-Jian v. Gonzales

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
CHEN LIN-JIAN, a/k/a Jian Cheng 
Lin,
Petitioner,
v.  No. 05-1693
ALBERTO R. GONZALES, Attorney
General,
Respondent.

On Petition for Review of an Order
of the Board of Immigration Appeals.
(A96-192-840)
Argued: October 27, 2006
Decided: May 30, 2007
Before NIEMEYER, TRAXLER, and SHEDD, Circuit Judges.
Petition granted in part and denied in part by published opinion. Judge
Traxler wrote the majority opinion. Judge Niemeyer wrote an opinion
concurring in part and dissenting in part. Judge Shedd wrote an opin-
ion concurring in part and dissenting in part.
COUNSEL
ARGUED: Yee Ling Poon, New York, New York, for Petitioner.
Lauren A. Wetzler, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Respondent. ON BRIEF: Robert Duk-Hwan Kim, New York, New
2 LIN-JIAN v. GONZALES
York, for Petitioner. Paul J. McNulty, United States Attorney, Alex-
andria, Virginia, for Respondent.
OPINION
TRAXLER, Circuit Judge:
Chen Lin-Jian, a native of the People’s Republic of China, claims
that he fled to the United States in order to escape China’s "one cou-
ple, one child" policy. Lin concedes that he is removable for being
present without having been admitted or paroled into the United
States, see 8 U.S.C. § 1182(a)(6)(A)(i), but seeks relief from removal
via political asylum, withholding of removal, and protection under the
Convention Against Torture ("CAT"). The Immigration Judge denied
Lin’s application for all three forms of relief and the Board of Immi-
gration Appeals ("BIA") summarily affirmed this denial.
Lin petitions this court for review of the BIA’s decision. We grant
the petition for review as to Lin’s claims for asylum and withholding
of removal and remand these claims for further evaluation. However,
we deny Lin’s petition for review of the BIA’s denial of relief under
the CAT.
I.
A.
Lin and his wife, who remains in China, are from a rural area near
Changle City in China’s Fujian Province. According to Lin, the cou-
ple married in 1993 and they have two children who also remain in
China. Their first child, a daughter, was born in April 1994, and the
second child, a son, was born in August 1995. For proof of his two
children, Lin submitted Notarial Birth Certificates that include pic-
tures of the children, provide their birthdates and birthplaces, and
identify Lin and his wife as the parents. The certificates were issued
in May 2003 by the Changle City Notary Public Office. Lin also sub-
mitted the children’s Permanent Resident Registration Cards which
include their birthdates and note their relationship to Lin; a Changle
LIN-JIAN v. GONZALES 3
City family-planning check-up card indicating that Lin and his wife
have a male child born in August 1995 and a female child born in
April 1994; and a family photo.
Lin claims that, after the birth of his daughter, family-planning
officials indicated the couple would be required to wait five years
before they could have a second child and directed them to use con-
traceptive measures. At his asylum hearing, Lin testified that in his
area of the Fujian province, couples are allowed two children, five
years apart. Lin’s assertions were consistent with the State Depart-
ment’s 1998 profile of conditions in China submitted by Lin. Accord-
ing to the report, officials in both urban and rural areas of the Fujian
province did not follow a strict one-child policy, often permitting a
second child if the first is female and the parents wait for a given
number of years between children. See Report of U.S. Dept. of State,
China: Profile of Asylum Claims and Country Conditions, at 20
(April 14, 1998) ("1998 Report").
Despite the order that they wait five years, Lin claims that his wife
gave birth to their son sixteen months later. Lin testified that family-
planning officials did not immediately discover the unauthorized
birth; rather, they became aware of Lin’s second child the following
year in December 1996 when Lin’s parents went to file a household
registration for Lin’s son. Lin testified that the government imposed
a fine of 10,000 RMB, which Lin testified was the equivalent of
$1,000 at the time. Lin paid the fine and submitted a receipt evidenc-
ing payment of the fine on December 15, 1996, for "violation of [the]
birth interval." J.A. 227.
According to Lin’s affidavit, family-planning officials also ordered
that Lin’s wife be sterilized. Lin claims "one of our relatives with
connection[s] to the cadres" persuaded them "not to sterilize us" but
to use an "IUD instead." J.A. 179. In support, Lin submitted a docu-
ment entitled "Changle City Certificate of Family Planning Opera-
tion," which indicates that Lin’s wife underwent an IUD insertion
procedure on December 16, 1996. Lin also notes that his wife was
directed to submit to regular gynecological exams as reflected by the
pregnancy check-up cards he offered into evidence. This document
lists these official pregnancy check-up visits from January 1997 to
September 2001, each of which is initialed by the "Cadre-in-charge"
4 LIN-JIAN v. GONZALES
and a doctor. Notations for the final visit indicate that the IUD was
still in place and Lin’s wife was not pregnant at the time.
According to Lin’s affidavit, he and his wife hired a private doctor
in December 2001 to remove the IUD, and, in April 2002, Lin’s wife
again became pregnant. Lin’s affidavit asserted that his wife hid from
family-planning officials at her parents’ house in LuBei village,
which is part of Changle City. Lin claims this move was unsuccessful,
however, as officials appeared at his mother-in-law’s house on
August 21, 2002, and "forcibly took [Lin’s] wife to Changle City
Hospital where she was involuntarily aborted on that day." J.A. 179.
Lin testified that at the time the political cadre took Lin’s wife for an
abortion, he was away in Fuzhou City where he worked in construc-
tion. Lin learned about the abortion when his mother-in-law called
him that morning; Lin says he did not see his wife until 10:00 p.m.
After the abortion was performed, family-planning officials indi-
cated that Lin’s wife would be required to undergo sterilization. Lin
claims that this threat caused them to flee Changle City the day after
the abortion to hide in the home of Lin’s uncle in Fuzhou City —
which is also in the Fujian Province — leaving their children in the
care of Lin’s parents in Changle City. At the hearing, Lin testified that
his parents brought the children to visit his wife, but Lin did not indi-
cate whether they came to visit more than once. To corroborate his
testimony, Lin produced, in addition to the evidence already men-
tioned, a declaration from his wife which was signed but not nota-
rized. The declaration was consistent with Lin’s testimony in all
major respects.
In December 2002, approximately four months after Lin and his
wife relocated to Fuzhou City, Lin fled China, leaving his wife at his
uncle’s house in the hope that, "if the cadres found [her], they might
not sterilize her since I [am] no longer in China." J.A. 180. Lin testi-
fied that he fears returning to China because he believes that he will
be forcibly sterilized.
During cross-examination, Lin acknowledged that he left China
with the help of a so-called "snakehead" who procured for Lin a Chi-
nese passport bearing Lin’s picture but a false name.1 Lin indicated
1
"Snakeheads" are professional smugglers of Chinese migrants. See
generally Silva-Rengifo v. Att’y Gen. of the United States, 473 F.3d 58,
65 (3d Cir. 2007).
LIN-JIAN v. GONZALES 5
that he used his own identification card to board a plane from Changle
City to Hong Kong. In Hong Kong, however, Lin was forced to use
the false passport to board an international flight to Mexico and then
to the United States, for which the snakehead had procured visas.
(J.A. 109) Lin testified that he agreed to pay the snakehead $10,000,
which he borrowed from relatives and friends. He admitted working
illegally in the United States in order to repay this debt.
B.
In an oral decision, the immigration judge (IJ) concluded that
"[b]ased on the totality of the evidence," Lin-Jian failed to establish
past persecution or a well-founded fear of future persecution and,
therefore, was ineligible for asylum. J.A. 47. In explaining her con-
clusion, the IJ felt certain aspects of Lin’s testimony were implausi-
ble, undercutting Lin’s assertion that he feared persecution. For
example, the IJ questioned whether someone who feared being dis-
covered by the authorities to the point that he went into hiding with
his wife, as Lin claimed, would continue to report for work at a con-
struction site. The IJ also dismissed Lin’s testimony that he was
forced to work in order to support his family, reasoning that if Lin
"was able to borrow $10,000 U.S. dollars from relatives to pay a
snakehead" then "he could have borrowed money from relatives while
he remained in hiding." J.A. 48. Additionally, the IJ found it unlikely
that a couple in hiding from family planning cadre would permit their
children to be brought to the hiding place on a regular basis to visit.
The IJ concluded that Lin’s testimony regarding the circumstances
of his departure from China likewise undermined Lin’s claim of a
well-founded fear of persecution. The IJ noted that, had Lin truly
been fearful of sterilization, he would not have presented his own
identification card when boarding the plane in Changle City but
"would have made arrangements with the snakehead for an alternate
way of leaving the country." J.A. 49.
The IJ suggested that the documents submitted by Lin to prove the
existence of his two children were lacking. Citing Matter of Ma, 20
I & N Dec. 394 (BIA 1991), the IJ noted that when notarial birth cer-
tificates are "issued a period of time after the subject’s birth . . . any
and all supporting evidence should accompany such certificates as
6 LIN-JIAN v. GONZALES
evidence of the claimed relationship." J.A. 48. The IJ considered the
Permanent Resident Registration Cards which set forth the children’s
dates of birth and relationship with Lin but found them "not of great
assistance" because Lin’s registration listed his occupation in 2001 as
that of farmer, not construction worker as Lin had testified. J.A. 61.
Finally, the IJ observed that none of the government documents
submitted by Lin had been authenticated and that the letter purport-
edly from Lin’s wife had not been notarized. It is unclear whether the
IJ refused on this basis to consider these documents at all or whether
the IJ merely accorded the documents little weight.
Thus, the IJ denied Lin’s application for asylum and, in view of
Lin’s failure to establish eligibility for asylum, denied Lin’s applica-
tion for withholding of removal under its more demanding "clear
probability" standard. The IJ denied relief under the CAT as well,
finding that Lin failed to meet his burden of proof for the same rea-
sons that he failed to establish eligibility for asylum and withholding
of removal. On appeal, the BIA summarily affirmed. Thus, the IJ’s
decision serves as the final agency determination and we review it as
if it were the BIA’s decision. See 8 C.F.R. § 1003.1(e)(4).
II.
A.
In order to be eligible for asylum, Lin must establish "refugee" sta-
tus under the INA. The Attorney General has the discretion to grant
asylum to an alien who successfully demonstrates that he qualifies as
a refugee. See 8 U.S.C. § 1158(b). A "refugee" is an individual "who
is unable or unwilling to return to" his native country "because of per-
secution or a well-founded fear of persecution on account of race,
religion, nationality, membership in a particular social group, or polit-
ical opinion." 8 U.S.C. § 1101(a)(42)(A).
An alien "may qualify as a refugee either because he or she has suf-
fered past persecution or because he or she has a well-founded fear
of future persecution." 8 C.F.R. § 1208.13(b) (emphasis added). An
asylum applicant who establishes past persecution on account of a
LIN-JIAN v. GONZALES 7
protected ground is entitled to a presumption that he or she has a well-
founded fear of persecution on that same ground. See 8 C.F.R.
§ 1208.13(b)(1); see also Camara v. Ashcroft, 378 F.3d 361, 367 (4th
Cir. 2004) ("If the applicant establishes that she has suffered past per-
secution, a presumption arises that she has the requisite level of fear
of persecution."). The government may rebut this presumption if it
establishes, by a preponderance of the evidence, that "[t]here has been
a fundamental change in circumstances such that the applicant no lon-
ger has a well-founded fear of persecution" in his native country or
that "[t]he applicant could avoid future persecution by relocating to
another part of the applicant’s country" and it was reasonable to do
so. 8 C.F.R. § 1208.13(b)(1)(i)(A)-(B); see 8 C.F.R. § 1208.13(b)(ii).
If the applicant is unable to establish a claim based on past persecu-
tion, he or she must demonstrate a well-founded fear of persecution
which has both subjective and objective components, meaning "that
the applicant is subjectively afraid and that the fear is objectively well-
founded." Camara, 378 F.3d at 367. A claim based on past persecu-
tion, however, does not require the applicant to show he or she sub-
jectively fears persecution in the country of origin. See id. at 369-70
("In cases where the applicant can prove actual past persecution . . .
she need not prove the subjective component of well-founded fear."
(internal quotation marks omitted)).
Congress specifically included within the definition of "refugee"
persons "forced to undergo an involuntary sterilization or abortion,"
persons "persecuted for refusing to undergo such a procedure or for
other resistance to a coercive population control program," and per-
sons with "a well-founded fear of being subjected to [a forced abor-
tion or sterilization, or persecuted for resistance to] a coercive
population control program." Chen v. INS, 195 F.3d 198, 202 (4th Cir.
1999); see 8 U.S.C. § 1101(a)(42). See also Li v. Gonzales, 405 F.3d
171, 176 (4th Cir. 2005) (explaining that Congress amended the defi-
nition of "refugee" in order to change previous court and BIA rulings
holding "that victims of China’s ‘one child’ policy had not been per-
secuted on a protected basis, and had been denied asylum requests
based on this ground").
The BIA interprets this provision to cover the spouse of a person
subjected to a forced abortion or sterilization, see In re C-Y-Z, 21 I.
& N. Dec. 915, 918 (1997), and the government does not challenge
8 LIN-JIAN v. GONZALES
this interpretation. Courts, by and large, have approved this construc-
tion as well. See Qiu v. Ashcroft, 329 F.3d 140, 151 (2d Cir. 2003);
He v. Ashcroft, 328 F.3d 593, 603-04 (9th Cir. 2003); Cao v. Gon-
zales, 442 F.3d 657, 660 (8th Cir. 2006). Thus, Lin may establish eli-
gibility for asylum or withholding of removal by demonstrating that
his wife was forced to undergo an abortion or that he himself has a
well-founded fear of sterilization or other persecution if he returns to
China.
B.
Lin contends that in rejecting the application for asylum and with-
holding of removal, the IJ relied on an adverse credibility determina-
tion that is not supported by substantial evidence. Moreover, Lin
asserts that the IJ did not discredit his testimony regarding his wife’s
forced abortion and failed to consider other evidence of past persecu-
tion.
1.
Lin bears the burden of proving his refugee status. See 8 C.F.R.
§ 208.13(a). "The testimony of the [asylum] applicant, if credible,
may be sufficient to sustain the burden of proof without corrobora-
tion." 8 C.F.R. § 208.13(a). We must affirm the agency’s decision as
long as it is not "manifestly contrary to the law." 8 U.S.C.
§ 1252(b)(4); see Tewabe v. Gonzales, 446 F.3d 533, 538 (4th Cir.
2006). We defer to the agency’s "credibility findings that are sup-
ported by substantial evidence." Camara, 378 F.3d at 367. If the IJ
rejects the testimony of an asylum applicant on credibility grounds,
however, he "should offer a specific, cogent reason for his disbelief."
Id. (internal quotation marks omitted). "‘Inconsistent statements, con-
tradictory evidence, and inherently improbable testimony’" are exam-
ples of cogent reasons that could support an adverse credibility
finding. Tewabe, 446 F.3d at 538 (quoting In re S-M-J-, 21 I. & N.
Dec. 722, 729 (BIA 1997) (en banc). By contrast, we will not defer
to an adverse credibility finding that is "based on speculation, conjec-
ture, or an otherwise unsupported personal opinion." Id. (internal quo-
tation marks omitted).
In her oral decision, the IJ concluded that Lin’s testimony was not
credible to the extent he claimed that, following his wife’s abortion,
LIN-JIAN v. GONZALES 9
the couple went into hiding to avoid being forcibly sterilized by gov-
ernment family planning officials. Specifically, the IJ found Lin’s tes-
timony that he departed from Changle City by presenting his own
identification card to government officials inconsistent with someone
who was in hiding for fear of being discovered by family planning
officials: "[I]f the respondent were so fearful, it seems logical to this
Court that he would have made arrangements with the snakehead for
an alternate way of leaving the country." J.A. 49.
Lin argues that this finding rests upon speculation, as there was no
evidence that airport officials have access to the identities of, or are
tasked with identifying or apprehending, Chinese nationals whom
family planning officials intend to sterilize. We agree with Lin that
this particular basis for rejecting Lin’s testimony rests upon an unsup-
ported implicit assumption that airport officials are equipped to iden-
tify citizens sought by family planning cadre. Cf. Cao He Lin v.
United States Dep’t of Justice, 428 F.3d 391, 405 (2d Cir. 2005)
(explaining that adverse credibility finding as to applicant’s forced
abortion claim was too speculative where it was based on applicant’s
failure to produce a written abortion notice but there was no evidence
suggesting that forced abortions were usually triggered by written
notice).
The IJ, however, also found that Lin’s testimony lacked credibility
because it was inconsistent with his affidavit filed in support of his
asylum application. The affidavit indicated that after his wife’s forced
abortion, "the cadres ordered one of us to undergo sterilization. We
did not want to be sterilized . . . We went to hide in my uncle’s house
in Fuzhou City." J.A. 180. During the hearing, Lin confirmed that his
wife went into hiding the very next day after her abortion; Lin also
indicated that he was hiding at his uncle’s house as well. However,
Lin stated that he continued to report to work. The IJ found that this
inconsistency undermined Lin’s claim of well-founded fear: "If [Lin]
were in fear of being sterilized, as he so claims, then he would not
go in and out of hiding." J.A. 60.
Lin argues that the IJ misconstrued this testimony. Lin testified that
"sometimes, I was hiding in my uncle’s house. Sometimes I went to
work in the construction . . . workplace." J.A. 116. The IJ concluded
that if Lin truly feared that the government would find him and forci-
10 LIN-JIAN v. GONZALES
bly sterilize him, he would not risk going "in and out" of hiding. Lin
argues that he did not believe that he was "coming out" of hiding by
reporting to work and that the IJ missed the clear meaning of this tes-
timony — that Lin continued to work while he was hiding at his
uncle’s house. Lin points out that this was consistent with his behav-
ior prior to his wife’s abortion, i.e., Lin went to work in Fazhou City
while his wife was hiding at her parents’ home in Changle City.
Although Lin’s preferred interpretation of the testimony is viable, it
is not the only plausible option and we are not compelled to conclude
that the IJ misconstrued Lin’s testimony with respect to his fear of
future persecution. See 8 U.S.C. § 1252(b)(4)(B); cf. Xiao Ji Chen v.
United States Dep’t of Justice, 471 F.3d 315, 336 n.16 (2d. Cir. 2006)
(affirming IJ’s rejection of petitioner’s claim that she continued to
work after going into hiding from Chinese officials because "‘[t]he
purpose of going into . . . hiding is to avoid the officials,’ and yet peti-
tioner’s workplace was ‘the very first place’ those officials would
have searched for petitioner ‘other than her home’"); Chen v. United
States Atty. Gen., 463 F.3d 1228, 1232 (11th Cir. 2006) (finding that
IJ provided specific and cogent reason for rejecting applicant’s claim
that he feared arrest because applicant approached strangers and "told
them where he was hiding").
Lin also argues that the court relied on speculation when it rejected
his explanation for continuing to work. Lin explained that he had to
support his family, requiring him to leave his uncle’s house and report
to his construction job in Fuzhou City. The IJ observed, however, that
Lin was "able to borrow $10,000 U.S. dollars from relatives to pay
a snakehead to come to the United States. If the facts are as he so
claims, [Lin] could have borrowed money from relatives while he
remained in hiding . . . protecting himself and his wife." J.A. 60. Lin
suggests that even though he obtained $10,000 from relatives to pay
the snakehead, it does not follow that he could have borrowed the
money to support his family so that he would not have to report to
work and risk being seen. Lin claims people would not be as inclined
to lend money so that he could support his family without having to
risk going to work. There is no testimony or other evidence, however,
to support Lin’s explanation. Lin testified simply that he paid the
snakehead $10,000 and that he obtained the funds from relatives. We
conclude that the IJ provided a specific and cogent reason based on
common sense for dismissing Lin’s explanation. Lin was, in fact, able
LIN-JIAN v. GONZALES 11
to obtain $10,000 which he used to pay a smuggler rather than meet
his living expenses. The IJ reasonably concluded that in view of Lin’s
ability to acquire substantial funds, he could have borrowed enough
to meet living expenses during the three month period he claimed to
be in hiding. "[T]he requirement that an IJ provide a specific and
cogent reason for an adverse credibility finding leaves ample room for
the IJ to exercise common sense in rejecting [an applicant’s] testi-
mony even if the IJ cannot point to . . . contrary evidence in the record
to refute it." Tewabe, 446 F.3d at 540 (internal quotation marks omit-
ted).
Additionally, the IJ concluded that it was "implausible that [Lin’s]
wife is in hiding in his uncle’s home in Fuzhou City, yet it appears
that his parents regularly bring their children to visit her while she is
in hiding." J.A. 61. The IJ noted that "if they are so fearful of the gov-
ernment officials discovering her hiding place, then the parents would
not be bringing the children to visit her at the place of hiding." Id. The
IJ found this testimony particularly incredible in view of Lin’s testi-
mony that government officials had previously located his wife while
she was in hiding.
Lin contends that the IJ mischaracterized his testimony that his
wife’s parents "have brought those two children to see my wife, to
visit my wife." J.A. 101-02. The IJ concluded that it was "implausi-
ble" to think that his wife’s parents would "regularly bring their chil-
dren to visit." J.A. 61 (emphasis added). Lin asserts that there is no
basis to conclude that these visits occurred on a regular basis or were
ongoing. We agree. It is clear that the grandparents brought the chil-
dren to visit their mother in Fazhou City, but Lin did not say how
often or how many times this occurred. Because the government has
pointed to nothing else in the record to support this finding, we con-
clude it is not supported by substantial evidence. It is not clear
whether the IJ would have relied on a single visit by the children,
rather than ongoing visits, as a reason for rejecting Lin’s claim that
the couple feared being discovered by the family planning officials.
In any case, we conclude that substantial evidence supports at least
two of the IJ’s reasons for rejecting Lin’s testimony that he has a
well-founded fear of sterilization, and consequently we are not "com-
pelled to conclude" that Lin’s testimony was reliable. See 8 U.S.C.
12 LIN-JIAN v. GONZALES
§ 1252(b)(4)(B); see also Tarrawally v. Ashcroft, 338 F.3d 180, 187
(3d Cir. 2003) (affirming adverse credibility finding as supported by
substantial evidence even though "[s]ome of the IJ’s reasons for his
adverse credibility determination were based on presumptions not
grounded in the record").
2.
Lin contends that even if the IJ’s adverse credibility findings are
supported by substantial evidence, we cannot sustain the denial of
asylum and withholding of removal because the IJ failed to articulate
any basis for rejecting Lin’s claim that he suffered past persecution
by virtue of his wife’s forced abortion. Rather, Lin suggests that none
of the reasons underlying the adverse credibility determination pertain
to Lin’s testimony regarding his wife’s forced abortion. Moreover,
Lin contends that the IJ did not have a sufficient basis for discounting
other independent evidence of past persecution.
We agree with Lin that the IJ did not make an adverse credibility
determination with respect to his testimony regarding his wife’s
forced abortion. To the extent that the IJ expressed skepticism and
doubt about Lin’s testimony, it was that Lin’s story did not demon-
strate a subjective fear of persecution. A determination that Lin’s tes-
timony that he feared sterilization or other punishment was not
believable does not defeat an asylum claim where there is also evi-
dence of past persecution. See Camara, 378 F.3d at 369-70 ("In cases
where the applicant can prove actual past persecution, however, a pre-
sumption arises that she has the requisite level of fear of persecution,
and thus she need not prove the subjective component of ‘well-
founded fear.’").
When an IJ is silent on the issue of credibility, it is appropriate to
presume that the applicant testified credibly. See Krotova v. Gonzales,
416 F.3d 1080, 1084 (9th Cir. 2005) ("When the BIA’s decision is
silent on the issue of credibility . . ., we may presume that the BIA
found the petitioner to be credible."); see also Toure v. Att’y Gen. of
the United States, 443 F.3d 310, 326 n.9 (3d Cir. 2006).2 Here,
2
The INA was amended through the REAL ID Act of 2005, Pub. L.
No. 109-13, § 101(a)(3)(B)(iii), 119 Stat. 302, 303 (2005), to provide
LIN-JIAN v. GONZALES 13
because none of the IJ’s credibility findings pertained to Lin’s testi-
mony about past persecution, the IJ was essentially silent. Thus, we
can presume Lin’s testimony was credible in this regard.
Lin’s testimony, standing alone, "may be sufficient to sustain the
burden of proof without corroboration." 8 C.F.R. § 208.13(a). How-
ever, even for credible testimony, corroboration may be required
when it is reasonable to expect such proof and there is no reasonable
explanation for its absence. See In re S-M-J-, 21 I. & N. Dec. 722,
Interim Decision 3303 (BIA 1997). The requirement that the applicant
provide a reasonable explanation for the lack of corroborating evi-
dence "presumes that the IJ offers a petitioner an opportunity to
explain the absence." Obale v. Att’y Gen. of the United States, 453
F.3d 151, 163 (3d Cir. 2006). The oral decision issued by the IJ stated
in conclusory fashion that Lin failed to meet his burden of proof, but
it provided no explanation as to what corroborating evidence Lin
lacked, why it was reasonable to expect such corroboration, or, for
that matter, whether corroboration was required at all for Lin’s past
persecution claim.
With respect to the IJ’s conclusion that the Household Registration
Card for Lin was of little value because it listed Lin’s occupation as
farmer rather than construction worker, Lin was afforded a chance to
explain. Lin, who lived in a rural part of the Fujian Province, testified
that he had been a farmer before he worked his construction job. He
also suggested that the local village officials altered the Household
Registration Book. Apparently, the IJ rejected this explanation; how-
ever, the IJ did not explain why a discrepancy on Lin’s individual
Household Registration Card rendered the Household Registration
Cards of the children wholly unreliable.
Moreover, there was other evidence of the children that the IJ did
not address. Lin offered the pregnancy check-up cards which included
the children’s dates of birth, a receipt reflecting that Lin paid a fine
for violating the "birth interval," and a family photo of Lin, his wife
that, in the absence of an explicit adverse credibility finding, "the appli-
cant or witness shall have a rebutable presumption of credibility on
appeal." 8 U.S.C. § 1158(b)(1)(B)(iii). This amended provision does not
apply in Lin’s case, however.
14 LIN-JIAN v. GONZALES
and the children. Although the IJ noted in passing that the government
documents offered by Lin were not authenticated, we are not able to
determine what effect, if any, the lack of authentication had on the
IJ’s decision. It is also unclear whether the IJ’s conclusion was prem-
ised solely upon Lin’s failure to comply with 8 C.F.R. § 287.6(b) or
some other basis. Consular certification pursuant to 8 C.F.R. § 287.6,
however, is not the exclusive means by which to authenticate such a
document. See e.g., Yongo v. INS, 355 F.3d 27, 31 (1st Cir. 2004).
The record contains a letter from Lin’s counsel indicating that
"[b]ased on our previous attempt at authentication, it is impossible to
have [Fujian] Chinese documents authenticated," and explaining that
‘The Foreign Affairs Office of Fujian Province DOES NOT accept
materials directly from lawyers for authentication. . . ." J.A. 319. Fur-
thermore, Lin points out that the government did not object to the
documents when they were submitted into evidence. In our view, Lin
ought to have been given an opportunity to authenticate these docu-
ments through another method if, in fact, the IJ excluded them under
8 C.F.R. § 287.6 in the first place. See Gui Cun Liu v. Ashcroft, 372
F.3d 529, 533 (3d Cir. 2004) ("Lius should have been allowed to
attempt to prove the authenticity of the abortion certificates through
other means, especially where . . . attempts to abide by the require-
ments of § 287.6 failed due to lack of cooperation from government
officials in the country of alleged persecution.").
We conclude that the denial of Lin’s claim of past persecution is
not supported by substantial evidence, and we remand for the IJ to
consider whether the testimony and other evidence establishes that
Lin suffered past persecution.
III.
Finally, Lin challenges the denial of relief under the CAT on the
basis that the IJ failed to separate analytically his CAT claim from his
asylum and withholding claims. To be eligible for relief under the
CAT, an applicant must demonstrate "that it is more likely than not
that he or she would be tortured if removed to the proposed country
of removal." 8 C.F.R. § 208.16(c)(2). He relies on Camara in which
we concluded that, because the standard for relief under the CAT is
distinct, an adverse credibility determination that defeats an asylum
claim cannot alone preclude relief under the CAT. See Camara, 378
LIN-JIAN v. GONZALES 15
F.3d at 372. The rule in Camara, of course, "assumes that the appli-
cant has presented other evidence to support her claim." 378 F.3d at
372. Lin did not submit any evidence suggesting it is more likely than
not that a Chinese national in his circumstances would be tortured
upon returning to China. Accordingly, we conclude that the denial of
relief under the CAT is supported by substantial evidence.
IV.
For the foregoing reasons, we grant the petition for review with
respect to Lin’s claim for asylum and withholding of removal based
on past persecution, and we remand for further proceedings consistent
with this opinion. We deny the petition with respect to Lin’s claim
that he established a well-founded fear of persecution. We also deny
Lin’s petition for review of the denial of his claim for relief under the
CAT.
PETITION GRANTED IN PART AND
DENIED IN PART
NIEMEYER, Circuit Judge, concurring in part and dissenting in part:
With respect to Lin’s request for asylum and withholding of
removal, I would affirm the Board of Immigration Appeals and the
Immigration Judge. Because the Board’s decision was grounded on
findings of fact and credibility determinations, we owe it substantial
deference, particularly in this area in which the Attorney General is
given broad discretion. The INA provides that the Board’s findings
of fact "are conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B); see
also INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992). Moreover,
we defer to credibility findings if they are supported by substantial
evidence. See Tewabe v. Gonzales, 446 F.3d 533, 538 (4th Cir. 2006).
I cannot find on this record that the evidence "compels" findings
different from those made by the Immigration Judge. See Elias-
Zacarias, 502 U.S. at 481 n.1 ("To reverse the BIA finding, we must
find that the evidence not only supports that conclusion, but compels
it"). Under this deferential standard, we must affirm.
16 LIN-JIAN v. GONZALES
With respect to Lin’s request for relief under the Convention
Against Torture, I concur in the majority’s opinion.
SHEDD, Circuit Judge, concurring in part and dissenting in part:
I concur in parts I, II.A, and II.B.2 of Judge Traxler’s opinion,
remanding Lin-Jian’s asylum and withholding of removal claims for
further credibility determinations with respect to past persecution.
However, I believe that Lin-Jian is also entitled to a new hearing with
respect to his claims of future persecution. Thus, I dissent from parts
II.B.1 and III of the opinion.1 Accordingly, I would remand for a more
thorough examination of Lin-Jian’s claims of both past persecution
and future persecution as they relate to his requests for asylum, with-
holding of removal, and the Convention Against Torture.
In my view, the IJ’s determination that Lin-Jian "[went] in and out
of hiding" while residing at his uncle’s house fails to address Lin-
Jian’s explanation for his actions. JA 48. Lin-Jian’s testimony reveals
that he considered himself in hiding throughout the entire period he
and his wife resided with his uncle, even though he continued to
report to work. In addressing Lin-Jian’s behavior during this period,
the IJ stated, "This makes no sense to this Court. If [Lin-Jian] were
in fear of being sterilized, as he so claims, then he would not go in
and out of hiding." JA 48. Without more explanation, the conclusory
assertion that testimony "makes no sense" is not a specific, cogent
reason for discrediting it, as required by Figeroa v. INS, 886 F.2d 76,
78 (4th Cir. 1989). Further, hiding does not necessarily require that
a person never leave his home. The only evidence in the record indi-
cates that government officials did not have accurate information
regarding Lin-Jian’s true place of employment.2 The IJ offered no
1
Section II.B.1 of Judge Traxler’s opinion asserts that two out of four
credibility determinations made by the IJ with respect to future persecu-
tion are supported by substantial evidence. I believe that none of the four
credibility determinations made by the IJ with respect to future persecu-
tion are supported by substantial evidence. I address herein only the two
credibility determinations upon which Judge Traxler and I differ in opin-
ion.
2
Lin-Jian’s official household registry card stated that he worked as a
farmer in Chun Lau City, but he testified that he actually worked in con-
LIN-JIAN v. GONZALES 17
clear rationale for rejecting this evidence, merely characterizing it as
"not of great assistance in this case." JA 49. Therefore, in my view,
the IJ provided no reason, much less a specific and cogent one, for
the conclusion that Lin-Jian’s continued employment as a construc-
tion worker constituted "go[ing] in and out of hiding." JA 48.
Further, the IJ found it inconsistent that Lin-Jian claimed to con-
tinue to work to support his family yet was able to borrow $10,000
to come to the United States. The uncontested testimony reveals that
Lin-Jian was a debtor who borrowed money to flee to a country that
offered vast economic opportunities. Lin-Jian testified that he was
"trying to earn some money so [he could] have enough money to pay
back [sic]." JA 110. As Judge Traxler correctly notes, our case law
allows immigration judges to exercise common sense in evaluating
the credibility of an asylum applicant. Tewabe v. Gonzales, 446 F.3d
533, 540 (4th Cir. 2006). However, a common sense determination —
like any other credibility determination — must be based on more
than mere speculation. Id. at 538. In my view, it is totally speculative
to assert that Lin-Jian could have obtained $10,000 to avoid reporting
to work and earning a wage. Indeed, common sense dictates that a
person may be able to borrow $10,000 from individuals who expect
to be repaid, even when those same individuals would not give
$10,000 to anyone. Accordingly, I believe that this determination
made by the IJ is not supported by substantial evidence and, therefore,
is due no deference.
Thus, in light of "the ordinary ‘remand’ rule" announced in INS v.
Ventura, 537 U.S. 12, 18 (2002), I would grant Lin-Jian’s petition for
review in its entirety and remand for clarification on Lin-Jian’s credi-
bility regarding both his past persecution and his well-founded fear of
future persecution.
struction in Fuzhou City. Though the IJ expressed doubts about the help-
fulness of the household registry card, she never expressly discredited it.
Thus, the only conclusion to be drawn from the record is that the
government-issued card was authentic but inaccurate, which serves to
corroborate Lin-Jian’s claim that he was able to hide from government
officials despite his continued employment.