United States Court of Appeals
For the First Circuit
No. 06-2155
YUE YUN LIN,
Petitioner,
v.
ALBERTO R. GONZALES,
UNITED STATES ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Torruella and Lipez, Circuit Judges,
and Tashima,* Senior Circuit Judge.
Farah Loftus on brief, for petitioner.
Peter D. Keisler, Assistant Attorney General, Civil Division,
with whom Christopher C. Fuller, Senior Litigation Counsel, and Ari
Nazarov, Trial Attorney, Office of Immigration Litigation, Civil
Division, were on brief, for respondent.
September 14, 2007
*
Of the Ninth Circuit, sitting by designation.
TASHIMA, Senior Circuit Judge. Yue Yun Lin, a native and
citizen of China, petitions for review of a Board of Immigration
Appeals (“BIA”) decision affirming an immigration judge’s (“IJ”)
denial of Lin’s application for asylum, withholding of removal, and
protection under the Convention Against Torture (“CAT”). Lin
claims that she was targeted by Chinese authorities on account of
her opposition to China’s coercive birth control policies, and
would face future persecution if she were removed to China. We
conclude that substantial evidence supports the BIA’s determination
that Lin lacked credibility, and therefore we deny Lin’s petition
for review.
I. Background
Lin was born in China in 1975, and first entered the
United States in November 2000. In December 2000, Lin was served
with a Notice to Appear, charging her with removability. In
November 2001, Lin applied for asylum, withholding of removal and
CAT protection.
In her asylum application, Lin described several run-ins
with Chinese family planning officials. First, she said that in
March 1999 she was falsely accused by family planning officials of
living with her boyfriend without being married. According to Lin,
she actually lived with her parents at that time. The officials
beat Lin’s boyfriend and forced Lin to submit to a gynecological
exam to check for pregnancy.
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Next, in May 1999, the family planning officials in Lin’s
village began seeking Lin’s brother, because he and his wife had a
second child in violation of government policy. Officials visited
Lin’s home three times to question Lin and her parents regarding
Lin’s brother, in May, June, and July 1999. Lin stated that at the
July visit, the officials insisted that her parents pay a 30,000
yuan RMB fine because of their refusal to divulge the whereabouts
of Lin’s brother’s family. As Lin’s parents could not afford to
pay the fine, the officials decided to arrest the parents. When
Lin protested, a struggle ensued. An official struck Lin, then
kicked her when she fell to the ground. Lin’s parents were held by
the authorities for several months.
In reaction to this second incident, Lin said that she
decided to protest the officials’ acts. Because Lin was not highly
literate, she asked someone else to write a statement for her
describing what had happened to her family and criticizing the
family planning officials. Lin posted the statement around the
village, and sent a copy to the local court. Lin was subsequently
told that the family planning officials, upset by her public
protest, wanted to arrest her. To avoid arrest, Lin left the
village and eventually settled in Xiamen, taking a job in a
clothing factory there.
Lin described a final encounter with the authorities that
occurred in Xiamen later that fall. Lin, however, gave two
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differing versions of the incident in her asylum application and
her later testimony in a hearing before the IJ. In Lin’s asylum
application, she stated that in November 1999, police conducted a
check for ID cards among the workers at Lin’s factory. Fearing
arrest because she was not a resident of Xiamen and thus not
legally permitted to work in Xiamen, Lin attempted to flee from the
police. During the chase, Lin said that she fell into a deep gully
and was knocked unconscious. She woke in a hospital, with severe
injuries to her left arm and her face. During the next year, Lin
stayed with friends in order to avoid arrest. Eventually, she met
an alien smuggler who helped her make her way to the United States
by way of Vietnam and Japan.
In her oral testimony before the IJ, speaking through a
translator, Lin described the incident in Xiamen that led to her
injuries differently. She testified that one day she went out to
the grocery store and encountered family planning officials from
her home village who were there searching for her to arrest her.
She fled into the mountains, and fell, which caused the injuries to
her arm and face. Lin’s oral description of the events that
followed, including her recovery and travel to the United States,
remained essentially the same as that given in her asylum
application.
After receiving Lin’s testimony over the course of
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several hearings,1 the IJ rejected Lin’s application for asylum,
withholding of removal, and CAT protection. In a written decision
filed in February 2005, the IJ stated that Lin’s testimony was not
credible, based on discrepancies and vagueness in Lin’s account of
her experiences.
Specifically, the IJ cited six inconsistencies in Lin’s
written asylum application and her oral testimony. These
discrepancies included: (1) that Lin gave inconsistent dates for
her employment in Xiamen; (2) that Lin told two quite distinct
versions of the chase by government officials in Xiamen in the
application and in her testimony; (3) that Lin listed eight total
years of education on her application, but stated at the hearing
that she had only five years of schooling; (4) that Lin failed to
mention at the hearing that she had traveled through Vietnam and
Japan en route to the United States, though her application
included this information; (5) that Lin misrepresented her place of
residence at an earlier hearing before an IJ in New York; and (6)
that Lin gave differing accounts of the family planning officials’
three visits to her parents’ home in search of her brother.
Based on Lin’s lack of credibility, the IJ found that Lin
had not established her eligibility for asylum. The IJ also
1
Lin’s individual hearing on her asylum application was
continued twice, once so that she could apply for a different form
of immigration relief and once so that she could secure child care
for her infant during the hearing.
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concluded that, even if Lin were found credible, Lin had not
demonstrated a well-founded fear of future persecution, as she had
remained in a state-run hospital for a month following the chase by
government officials without incident, and suffered no further
problems before she left China a year later. Moreover, Lin’s
parents and the family of her brother all continued to live in
China peaceably. Given that Lin had failed to show her eligibility
for asylum, the IJ found that Lin had also failed to show
eligibility for withholding of removal or CAT protection.
In a per curiam order, the BIA adopted and affirmed the
IJ’s decision. The BIA stated that “the discrepancies noted by the
Immigration Judge are material and relevant to [Lin’s] persecution
claim and the Immigration Judge’s adverse credibility finding is
supported by the record before us.” As a result, the BIA concluded
that Lin had failed to satisfy her burden of proof as to her
claims, and her appeal was dismissed.
II. Standard of Review
Where, as here, “the BIA adopted and affirmed the IJ’s
ruling, but also discussed some of the bases for the IJ’s opinion,
we review both the IJ’s and BIA’s opinions.” Zheng v. Gonzales,
475 F.3d 30, 33 (1st Cir. 2007). We review the agency’s factual
findings, including credibility determinations, under the
substantial evidence standard, and may overturn those findings only
if “any reasonable adjudicator would be compelled to conclude to
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the contrary.” 8 U.S.C. § 1252(b)(4)(B); Dhima v. Gonzales, 416
F.3d 92, 95 (1st Cir. 2005). We “give great deference to an IJ’s
[credibility] determinations so long as the IJ provide[d] specific
reasons for those determinations.” Id. at 95 (citations and
internal quotation marks omitted).
III. Discussion
An asylum applicant bears the burden of establishing her
eligibility for asylum. 8 C.F.R. § 1208.13(a). She may do so by
demonstrating past persecution or a well-founded fear of future
persecution in her home country on the basis of race, religion,
nationality, membership in a particular social group, or political
opinion. 8 U.S.C. § 1101(a)(42)(A); 8 C.F.R. § 1208.13(b).
Opposition to a government’s coercive birth control policies
qualifies as political opinion. Zheng, 475 F.3d at 34 (citing 8
U.S.C. § 1101(a)(42)).
An applicant may establish her eligibility for asylum on
the basis of her testimony alone, but if she attempts to do so, an
agency finding that she is not credible will usually doom her
application. See 8 C.F.R. § 1208.13(a); see also Dhima, 416 F.3d
at 95. While we defer to the agency’s credibility findings, we
adhere to the principle that “an adverse credibility determination
cannot rest on trivia but must be based on discrepancies that
involved the heart of the asylum claim.” Bojorques-Villanueva v.
INS, 194 F.3d 14, 16 (1st Cir. 1999) (citation and internal
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quotation marks omitted).2 Further, the discrepancies or omissions
relied upon by the IJ “must actually be present in the record . .
. and . . . a convincing explanation for the discrepancies or
omissions must not have been supplied by the alien.” Zheng v.
Gonzales, 464 F.3d 60, 63 (1st Cir. 2006) (citation and internal
quotation marks omitted).
In this case, substantial evidence supports the IJ’s
finding that Lin was not credible. Our primary basis for upholding
the IJ’s adverse credibility finding is the glaring inconsistency
in Lin’s two accounts of the incident that led her to leave China,
i.e., the alleged chase by authorities that led to Lin’s fall and
severe injuries to her left arm.
Lin first alleged that she was chased by police after she
sought to evade an ID card check at the factory where she worked
(an event that would be irrelevant to her claim of persecution on
account of her opposition to Chinese birth control policies). She
later claimed that the chase began during a trip to the grocery
store, when she encountered family planning officials from her home
2
The REAL ID Act of 2005 added a provision to the asylum
statute stating that inconsistencies, inaccuracies, and falsehoods
in the asylum applicant’s statements may support an adverse
credibility finding “without regard to whether [the] inconsistency,
inaccuracy, or falsehood goes to the heart of the applicant’s claim
. . . .” REAL ID Act of 2005, Pub. L. No. 109-13, § 101(a)(3), 119
Stat. 231, 303 (codified at 8 U.S.C. § 1158(b)(1)(B)(iii)).
However, Lin’s asylum application was filed well before the Act’s
effective date and thus should be adjudicated under the standards
of prior law. See In re S-B, 24 I. & N. Dec. 42, 45 (BIA 2006).
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village and fled to avoid arrest. These accounts are fundamentally
inconsistent, and the inconsistency undermines the core basis for
Lin’s claimed fear of persecution, which was Lin’s allegation that
family planning officials from her village actively sought her
arrest following Lin’s public opposition to the officials’ coercive
practices. Lin has never explained why she told two such different
versions of this incident in Xiamen.
Moreover, the record also supports the IJ’s description
of the other inconsistencies and omissions in Lin’s accounts of her
experiences. While these additional discrepancies do not
necessarily go to the heart of Lin’s persecution claim, and thus
might not be enough standing alone to support an adverse
credibility finding, see Bojorques-Villanueva, 194 F.3d at 16, in
this case they provide further support for the IJ’s conclusion that
Lin was not candid in her recitation of events. Thus, we conclude
that the record supports the IJ’s finding that Lin was not
truthful.
Given Lin’s lack of credibility in describing the basis
for her alleged fear of future persecution, Lin has failed to
demonstrate that she is eligible for asylum. See 8 C.F.R. §
1208.13(a). For the same reason, Lin has also failed to establish
her eligibility for withholding of removal or CAT protection, as
she has not demonstrated that she is likely to suffer threats to
her life or freedom, or face torture if removed to China. See 8
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U.S.C. § 1231(b)(3) (withholding of removal required where alien’s
life or freedom would be threatened on account of a protected
ground if removed); 8 C.F.R. § 1208.16 (c)(2) (CAT protection
accorded where alien would more likely than not be tortured if
removed). Consequently, we affirm the BIA’s order.
The petition for review is denied.
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