United States Court of Appeals
For the First Circuit
No. 03-1387
MEI GUAN LIN,
Petitioner,
v.
JOHN ASHCROFT,
Attorney General of the United States,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Circuit Judge,
Lipez, Circuit Judge,
and Garcia-Gregory,* District Judge.
Bruno Joseph Bembi was on brief for Petitioner.
John Andre, Senior Litigation Counsel, Office of Immigration
Litigation, with whom Peter D. Keisler, Assistant Attorney General
and Donald E. Keener, Deputy Director, were on brief for
Respondent.
June 8, 2004
*
Of the District of Puerto Rico, sitting by designation.
GARCIA-GREGORY, District Judge. Mei Guan Lin (“Lin”), a
native and citizen of the People’s Republic of China, seeks review
of the denial by the Board of Immigration Appeals (“BIA”) of his
application for asylum under the Immigration and Nationality Act
(“INA”) § 208(a), 8 U.S.C. § 1158(a), withholding of removal under
INA § 241(b)(3), and denial of his request for relief under the
United Nations Convention Against Torture (CAT).
I.
Lin is a resident of the Fujian Province, People’s
Republic of China. He was smuggled into the United States on
October 20, 1998. Previously, one of his sisters was also smuggled
into the United States, but there is no information on record as to
her present status.
Lin testified before an Immigration Judge at his removal
hearing on April 18, 2000, and a subsequent hearing on July 27,
2000.1 Conceding removability, Lin requested relief in the form of
asylum, withholding of removal, and protection under the Convention
Against Torture. Lin was the only person who testified, and he
recounted the following events.
Lin stated that he unofficially married Yan Fang Pan on
December 18, 1985. A son was born to them on January 15, 1987, and
Lin did not initially report the birth to the Chinese authorities.
The authorities allegedly found out about the birth and required
1
There was a preliminary hearing on September 2, 1999.
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Ms. Pan to use an intrauterine device. Lin claims that the IUD
“fell out”, and in February 1989 Ms. Pan discovered she was
pregnant again. To avoid possible repercussions for the second
pregnancy, Lin and Ms. Pan moved in with Lin’s uncle in Fuzhou
City, leaving their son with Lin’s mother. Their daughter was born
on August 3, 1989.
Lin claimed that in August of 1989 two family planning
cadres came to his uncle’s house and took Ms. Pan to undergo a
sterilization procedure at Jung Tin Kon Hospital. Lin was also
fined for violating China’s one-child policy, and was fined a
second time for registering his son to attend school. Lin stated
that he borrowed the money from relatives.
As a result of these events, Lin became disillusioned and
did not want to remain in China. In December of 1997, he arranged
to borrow $35,000 from relatives to pay smugglers to transport him
to the United States. Lin came alone, leaving Ms. Pan and his
children in China. Lin already had a sister living illegally in New
York who was also smuggled into the U.S. prior to his arrival. Lin
claimed he was tortured, but offered no evidence to support his
claim.
On July 21, 2000, six days prior to the July 27th asylum
hearing - rather than the 10 days required by the Court’s rules -
Lin submitted 17 documents to the Immigration Court to support his
asylum claim. Counsel stated that he had not had time to file the
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documents on time, and that he had not attempted to authenticate
them.
On July 27, 2000, after the conclusion of the removal
hearing, the Immigration Judge delivered an oral opinion where she
denied asylum and withholding of removal, as well as protection
under CAT. The IJ found that since the documents presented at the
time of the hearing had not been authenticated, and that no
foundation had been laid for their admission (with the exception of
the eldest boy’s birth certificate), they would be part of the
record for identification purposes but would not be admitted into
evidence. The IJ noted in particular that there was no evidence
that the woman with the scar in the photograph was Ms. Pan, or that
the x-ray submitted was hers.
The IJ also determined that Lin’s claim of persecution
for being assessed a fine of $200 to register his son was
incompatible with his ability to raise $35,000 to pay smugglers to
transport him to the U.S. In addition, the IJ found that Lin’s
account of persecution was uncorroborated because the documents
were not authenticated and no chain of custody had been
established. He also presented no evidence that he was more likely
than not to be tortured. Because Lin did not meet the standard for
asylum, he could not meet the stricter standard for withholding of
removal.
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Lin appealed the IJ’s decision. The BIA declined to
consider the additional evidence that was submitted and upheld the
IJ’s decision. The BIA found that Lin failed to sustain his burden
of proof through any combination of his testimony and corroborating
material, that Lin had not provided sufficient detail regarding the
alleged sterilization of his wife, particularly as to the issue of
coercion, and that the documents submitted did not relate to any of
the material issues of force.
II.
It is well established that the BIA’s determination “must
be upheld if ‘supported by reasonable, substantial, and probative
evidence on the record considered as a whole’.” INS v. Elias-
Zacarias, 502 U.S. 478, 481 (1992); Qin v. Ashcroft, 360 F.3d 302,
306 (1st Cir. 2004). To that effect, while testimony, if credible,
is enough to support a petition for asylum, it would be erroneous
to then conclude that all testimony must be taken at face value.
Aguilar-Solis v. INS, 168 F.3d 565, 571 (1st Cir. 1999)(“While the
obligation to defer should not be confused with an obligation to
rubber-stamp the hearing officer’s credibility call, such a
determination merits judicial approbation as long as the findings
on which it rests have sufficiently sturdy roots in the
administrative record.”).
Lin has presented a large number of separate issues on
appeal. These arguments, however, can be summarized as follows: (1)
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that the IJ’s credibility determinations were not supported by
substantial evidence; (2) that the BIA erred in not considering the
additional documentation; and (3) that the IJ erred in finding that
there was not sufficient evidence to support the conclusion that
Lin merits the withholding of removal and benefits under CAT. Lin
contends that both the IJ and the BIA had ample documentation and
testimony to support his request for asylum. As to the credibility
and verification issues, Lin argues that there were no
discrepancies in his testimony, and that it is very difficult, as
acknowledged by the INS, to obtain authentication of documents from
China. In addition, he argues that he was never put on notice as to
the fact that the court would require authentication of the
documents presented, and that there were no specific findings as to
any of the documents being fraudulent. He further claims that the
court incorrectly insisted on corroboration of Lin’s testimony. In
sum, Lin claims that his request was denied for “invidious reasons
having nothing to do with the evidence presented.”
To qualify as a “refugee” and for consideration of
asylum, an applicant must demonstrate either (1) past persecution,
creating a presumption of a well-founded fear of persecution; or
(2) a well-founded fear of persecution. Qin v. Ashcroft, 360 F.3d
302, 306 (1st Cir. 2004), citing Yatskin v. INS, 255 F.3d 5, 9 (1st
Cir. 2001). Under 8 U.S.C. § 1101(a)(42), a person who has been
submitted to a forced sterilization and/or persecution for failure
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or resistance to submit to a sterilization procedure, as well as a
person who has the well-founded fear of such future sterilization
or persecution, is deemed to have been persecuted or have a well-
founded fear of persecution on account of political opinion. Under
this provision, the spouse of a person who has been forced to
undergo sterilization may qualify as a refugee. The record in this
case is too weak to render unreasonable the IJ’s decision that Lin
did not meet the qualifications for refugee status.
The majority of Lin’s claims in this appeal hinge on the
IJ’s assessment of his credibility and his disagreement with that
assessment. The IJ found the credibility of Lin’s testimony
difficult to assess, and furthermore, found that there was
insufficient evidence on the record to corroborate Lin’s account.
The record shows that Lin presented insufficient evidence to
establish past persecution or well-founded fear of future
persecution, and his testimony did not include any accounts of past
torture or likelihood of torture in China. While Lin describes his
frustration at having to pay a fine for his eldest child’s
schooling and uncertainty as to whether or not this fine would be
assessed in the future, his concerns are not based on specific
events or indications that he was being persecuted. The time lapse
between his wife’s alleged sterilization (1989) and his
disillusionment and subsequent planning to leave (1997) is
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noticeable, and again, the record does not point to any intervening
factors that support his claim of possible future persecution.
The IJ insisted on corroboration because she believed
that Lin failed to provide a plausible, believable account. She
also found it difficult to credit Lin’s motivations for wishing to
stay in the United States, in light of his outstanding $35,000.00
(thirty-five thousand) debt to relatives in China. Moreover, the IJ
found that the documents presented by Lin did not furnish such
corroboration, because he failed to establish a foundation for the
documents submitted, failed to submit them in a timely manner, and
failed to authenticate them in accordance with 8 C.F.R. § 287.6
(1999). Given the undisputed government reports that the documents
from the Fuzhou area of China are subject to widespread fabrication
and fraud, it was reasonable for the IJ to require some type of
authentication of the documents submitted by Lin. In this case no
authentication was offered, or attempted through the minimal effort
of having the official seals recognized by the American consulate
in China. Additionally, it is up to the BIA in its sound discretion
to decide whether or not to consider further documentation, and we
can discern no abuse in this regard. Lin did not offer any
explanations as to why these documents and reports regarding
torture in China were not submitted earlier, nor how these reports
would be relevant to his claims.
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The IJ’s difficulty in assessing Lin’s credibility and
the lack of supporting evidence were the basis for the IJ’s
findings. The record does not compel a rejection of the IJ’s
determination to deny Lin’s applications for asylum, withholding of
removal, and protection under CAT.
III.
For the reasons set forth above, the decision of the BIA
is affirmed.
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