Jianqing Lin v. Loretta Lynch

Case: 15-60068 Document: 00513470298 Page: 1 Date Filed: 04/19/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-60068
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
April 19, 2016
JIANQING LIN,
Lyle W. Cayce
Clerk
Petitioner
v.
LORETTA LYNCH, U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A094 918 666
Before SMITH, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM: *
Jianqing Lin, a native and citizen of the People’s Republic of China,
petitions for review of a decision by the Board of Immigration Appeals (BIA)
dismissing his appeal from the decision of the immigration judge (IJ) denying
his application for asylum, withholding of removal, and withholding of removal
under the Convention Against Torture and ordering that he be removed to
China. Lin argues that the BIA and IJ clearly erred by finding that his
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 15-60068
testimony was not credible. He maintains that the IJ initially found that his
testimony was credible and that the BIA affirmed this finding. He contends
that the inconsistency in his testimony regarding whether he or his father was
considered an anti-government activist was a translation issue that he quickly
corrected. According to Lin, his testimony concerning whether his father led
the other villagers to hand over their land was not inconsistent. He contends
that it easily could have been the case that his father told the government
officials that the villagers would surrender their land to get Lin released and
the villagers later decided not to surrender their land. Lin also challenges the
IJ’s alternative ruling that he was not eligible for relief even if his testimony
were credible.
When considering a petition for review, we have the authority to review
only the BIA’s decision, not the IJ’s decision, unless the IJ’s decision has some
impact on the BIA’s decision. Mikhael v. INS, 115 F.3d 299, 302 (5th Cir.
1997). In this case, we may review the IJ’s ruling as well as the BIA’s decision
regarding Lin’s credibility because the BIA affirmed the IJ’s ruling in this
respect. See Efe v. Ashcroft, 293 F.3d 899, 903 (5th Cir. 2002). We cannot,
however, consider the IJ’s alternative ruling that Lin was not entitled to relief
even if his testimony were credible because the BIA did not consider it. See
Yang v. Holder, 664 F.3d 580, 584 n.3 (5th Cir. 2011).
An immigration court’s findings of fact are reviewed for substantial
evidence. Wang v. Holder, 569 F.3d 531, 536 (5th Cir. 2009). We may not
reverse an immigration court’s factual findings unless “the evidence was so
compelling that no reasonable factfinder could conclude against it.” Id. at 537.
It is the factfinder’s duty to make determinations based on the credibility of
witnesses, and we cannot substitute our judgment for that of the BIA or IJ
with respect to factual findings based on credibility determinations. Chun v.
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INS, 40 F.3d 76, 78 (5th Cir. 1994). However, an adverse credibility
determination still “must be supported by specific and cogent reasons derived
from the record.” Zhang v. Gonzales, 432 F.3d 339, 344 (5th Cir. 2005).
Contrary to Lin’s assertion, the BIA did not affirm the IJ’s initial finding
that Lin’s testimony was credible. Instead, it simply noted this finding,
vacated the IJ’s initial ruling on other grounds, and remanded the case to the
IJ.
The record belies Lin’s argument that the inconsistency in his testimony
regarding whether he or his father would be considered an anti-government
activist was due to a translation error. Lin’s counsel, like Lin, spoke Mandarin,
and when Lin’s counsel believed that there was a translation error, he
challenged the translation. However, when Lin testified that his father would
be considered an anti-government activist, Lin’s counsel did not challenge the
translation; instead he asked a follow-up question so that Lin could state that
it was he, not his father, who would be considered an anti-government activist.
Furthermore, translation issues at the asylum hearing cannot account for the
fact that Lin stated in his credible fear interview that he would be considered
an anti-government activist but stated in his asylum application that his
father would be considered an anti-government activist. Additionally, Lin
merely speculates that there was a translation error without providing any
evidence showing that there was a translation error, and this is insufficient to
undermine the adverse credibility determination. See Wang, 569 F.3d at 539.
The record also supports the IJ’s and BIA’s determination that Lin’s
testimony regarding whether the villagers surrendered their land when Lin’s
father did was inconsistent. Lin first testified that his father led the villagers
to surrender their land in order to secure Lin’s release from detention. He later
testified that, after he was released, he attempted to persuade the villagers not
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No. 15-60068
to give up their land. On cross-examination, he stated that the other villagers
did not give up their land at the same time that his father did. While Lin
contends that there is an explanation for this apparent inconsistency, this post-
hoc rationalization is insufficient to overturn the credibility determination
made by the IJ and BIA. See Wang, 569 F.3d at 538.
The IJ and BIA also ruled that Lin’s testimony was not credible because
he testified that he was wanted by the Chinese government but was allowed to
leave China using his own passport while the State Department report on
China indicated that those the Chinese government considered to be against
the government were not allowed to travel freely. This finding is supported by
the record. Lin does not challenge this finding.
The adverse credibility determination was “supported by specific and
cogent reasons derived from the record.” Zhang, 432 F.3d at 344. The totality
of the circumstances does not compel a finding that Chen was credible, and
accordingly we will not disturb the adverse credibility determination. See
Wang, 569 F.3d at 537-39.
PETITION FOR REVIEW DENIED.
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