Qun Lin v. Mukasey

United States Court of Appeals
For the First Circuit

No. 07-1658

QUN LIN,

Petitioner,

v.

MICHAEL MUKASEY, Attorney General,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS

Before

Lynch, Circuit Judge,
John R. Gibson,* Senior Circuit Judge,
and Howard, Circuit Judge.

Khagendra Gharti-Chhetry on brief for petitioner.
Margaret A. O’Donnell, Trial Attorney, with whom Peter D.
Keisler, Assistant Attorney General, Civil Division, and Aviva L.
Poczter, Senior Litigation Counsel, Office of Immigration
Litigation, Civil Division, U. S. Department of Justice, were on
brief for respondent.

March 26, 2008

*
Hon. John R. Gibson, of the Eighth Circuit, sitting by
designation.
 JOHN R. GIBSON, Senior Circuit Judge. Qun Lin, a native and

citizen of the People's Republic of China, petitions for review of

an order of the Board of Immigration Appeals denying his claims for

asylum, withholding of removal, and relief under the Convention

Against Torture. Qun Lin contends that the BIA arrived at an

adverse credibility finding that was not supported by substantial

evidence. We deny the petition.

On June 14, 2005, Qun Lin applied for asylum and other

relief alleging that he had been imprisoned and mistreated by

Chinese authorities on account of his practice of Falun Gong, a

meditative practice outlawed by the Chinese government in 1999.

He testified at his hearing that he began practicing

Falun Gong to improve his health in November 1998, before the

practice was banned. He worked in a garment factory, and he had

suffered fainting spells on the job. He began to practice Falun

Gong with his uncle, privately, in his uncle's house or foyer.

When Falun Gong was outlawed, he continued to practice until

February 2003, when he was picked up and taken to a labor camp in

Linjiang County. He said that he was sentenced to three months in

the camp and that while he was there, he was interrogated and told

to stop practicing Falun Gong. He said his captors slapped and

punched him and that he was beaten over twenty times. He said that

"when they beat me up there, I lost consciousness and they never

taken me to the hospital." After serving a three-month sentence,

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he was released. He said that when he was released, he "could

barely walk," and that it took about a month to recover from his

injuries. He went to a traditional doctor for treatment.

In 2004, he contacted a smuggler, whom he paid 40,000

Chinese RMB to transport him to the United States. He left China

using his own passport, then traveled through Hong Kong, Guatemala,

and Mexico. He finally entered the United States without

inspection on or about October 4, 2004, at or near Hidalgo, Texas.

He applied for asylum, withholding of removal, and relief under the

Convention Against Torture.

The Immigration Judge hearing his case found that Qun Lin

was not a credible witness, primarily because of inconsistencies in

his testimony concerning the circumstances of his arrest and

imprisonment. Qun Lin had initially testified that he last worked

for the garment factory in February 2003 "right before I got

arrested." On cross-examination, he said he had stopped working

before his arrest in February 2003 due to a workplace injury. On

further questioning, Qun Lin testified that he did not stop working

at the factory until May 13, 2003, which would have been after his

arrest and release on May 7 of that year. The IJ observed that Qun

Lin's statements about when he stopped working were inconsistent

and that his statement that he returned to work immediately after

his release from the camp was inconsistent with his testimony that

he was so injured during his imprisonment that he could hardly walk

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when he was released. The IJ found that Qun Lin "was never able to

reconcile this discrepancy."

The IJ further remarked on inconsistencies about Qun

Lin's current practice of Falun Gong in the United States. Qun Lin

said he only practiced Falun Gong about twice a month here, but on

questioning about why he did not practice more often, he said that

his master had advised him that the best way to do Falun Gong was

mentally. In response to the IJ's questions, Qun Lin conceded that

he could practice mental Falun Gong in China without anyone ever

knowing. Based on this concession, the IJ found that Qun Lin did

not have a reasonable basis to fear future persecution if he

returned to China.

The IJ also relied on the fact that a Chinese passport

was lawfully issued to Qun Lin during the time that he alleges that

he was being harassed by the Chinese government. She also remarked

that Qun Lin gave no details to support his claim of harassment

after his release from the work camp.

Finally, the IJ remarked that in light of the weakness of

Qun Lin's own testimony, his claim would have been bolstered by

corroborative documentation showing that he had in fact been

treated for serious injuries in May 2003, but that Qun Lin did not

produce any such corroboration. The IJ concluded that, having

failed to establish his eligibility for asylum, Qun Lin also failed

to substantiate his claims for withholding of removal and relief

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under the Convention Against Torture, both of which were based on

the same testimony the IJ rejected as incredible.

Qun Lin appealed to the BIA, which issued a reasoned

decision affirming on the ground that the IJ's adverse credibility

finding was not clearly erroneous. See 8 C.F.R. § 1003.1(d)(3)(i)

(BIA reviews IJ's findings for clear error).

Qun Lin petitions for review of the BIA decision. He

contends that the IJ's adverse credibility finding was not

supported by substantial evidence and that the IJ failed to take

into account background evidence on country conditions that he

introduced into the record.

We review the BIA's findings of fact according to the

administrative substantial evidence standard, under which the

agency's findings are conclusive unless any reasonable adjudicator

would be compelled to conclude to the contrary of the finding.

Albathani v. INS, 318 F.3d 365, 372 (1st Cir. 2003); 8 U.S.C. §

1252(b)(4)(B). In assessing whether the findings are supported by

the record, we review the entire record, not merely the evidence

that supports the BIA's conclusions. Albathani, 318 F.3d at 372.

We review the BIA's conclusions of law de novo, giving the

appropriate deference to the agency's interpretation of the statute

it administers. Id.

Where the BIA does not adopt the IJ's findings, we review

the BIA's decision rather than the IJ's. Georcely v. Ashcroft, 375

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F.3d 45, 49 (1st Cir. 2004). Where the BIA adopts the IJ's ruling,

but also engages in discussion of its own, we review the decisions

of both together. Hem v. Mukasey, 514 F.3d 67, 69 (1st Cir. 2008).

The government contends that the BIA adopted the IJ's decision, and

Qun Lin contends it did not. The BIA's decision does not say that

it adopts the IJ's decision, but only that the IJ's findings were

not clearly erroneous.1 Accordingly, we review the BIA's ruling.

I.

Qun Lin argues that his testimony was not self-

contradictory because he "consistently testified that his

employment was terminated in February 2003 immediately before his

arrest." But he did not stick to this story. He also testified,

"I stopped working in May after I got released." When confronted

with the inconsistency, he affirmed, "I stopped working in May,"

then specified May 13. Later, on redirect he said he quit working

at the factory in February "[b]ecause I got arrested and detained

by Chinese government for three months." The record supports the

finding that there were internal contradictions in Qun Lin's

testimony.

1
The BIA adopted the clear error standard of review advisedly
in a regulation that became effective on September 25, 2002. See
8 C.F.R. § 1003.1(d)(3)(i); Board of Immigration Appeals:
Procedural Reforms To Improve Case Management, 67 F.R. 54878,
54888-54891 (Aug. 26, 2002). Neither party addresses the somewhat
metaphysical question of whether we should review the BIA's legal
conclusion that the IJ's findings were not clearly erroneous or the
underlying findings of fact themselves. The distinction would not
affect the result in this case, so we need not belabor it.

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 Qun Lin contends that these contradictions were too minor

to support the adverse credibility determination.2 Under our case

law, an adverse credibility determination may not be predicated on

inconsistencies in an applicant's testimony that do not go to the

heart of the applicant's claim. Bojorques-Villanueva v. INS, 194

F.3d 14, 16 (1st Cir. 1999). This rule has been superceded by the

Real ID Act of 2005, Pub. L. No. 109-13, div. B, tit. I, §

101(a)(3), 119 Stat. 302, 303 (codified at 8 U.S.C. § 1158(b)), in

cases in which the application for asylum, withholding, or other

relief from removal was filed on or after May 11, 2005, the

effective date of the Act. See 8 U.S.C. § 1158 note (Effective and

Applicability Provisions). Qun Lin applied for asylum on June 14,

2005, and so his case is governed by the Act. The Real ID Act

overhauled the methodology to be used by the trier of fact in

making credibility determinations in asylum and withholding cases.

The new language provides:

Credibility determination. Considering the totality of
the circumstances, and all relevant factors, a trier of
fact may base a credibility determination on the
demeanor, candor, or responsiveness of the applicant or
witness, the inherent plausibility of the applicant's or
witness's account, the consistency between the

2
The record reveals another apparent inconsistency that goes
to the heart of Qun Lin's claim, in that he testified at the
hearing that he had been beaten more than twenty times while in the
labor camp, but his asylum application seems to refer to only one
beating ("In April, I was beaten up by the police at the facility
while handcuffed. I eventually lost my consciousness."). Because
the BIA did not note this inconsistency, we may not rely on it.
See Nagi El Moraghy v. Ashcroft, 331 F.3d 195, 205 (1st Cir. 2003).

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 applicant's or witness's written and oral statements
(whenever made and whether or not under oath, and
considering the circumstances under which the statements
were made), the internal consistency of each such
statement, the consistency of such statements with other
evidence of record (including the reports of the
Department of State on country conditions), and any
inaccuracies or falsehoods in such statements, without
regard to whether an inconsistency, inaccuracy, or
falsehood goes to the heart of the applicant's claim, or
any other relevant factor.

8 U.S.C. § 1158(b)(1)(B)(iii) (emphasis added); see also 8 U.S.C.

§§ 1231(b)(3)(C) & 1229a(c)(4)(C). The import of the highlighted

language is to eliminate the "heart of the claim" rule.3 See

3
The early remarks on H.R. 418, 109th Cong. (2005), reprinted
at 151 Cong. Rec. H536-41 (daily ed. Feb. 10, 2005), reveal an
intent by its proponents to overrule certain unspecified opinions
of the Ninth Circuit that were thought to unduly restrain an IJ's
ability to judge credibility. See, e.g., 151 Cong. Rec. at H549-50
(Remarks of Mr. Sensenbrenner: bill "brings back sanity to the
asylum laws by overturning these rogue precedents from the ninth
circuit"); id. at H551 (Remarks of Mr. Hostettler: "These
provisions merely overturn Ninth Circuit Court decisions saying
that immigration judges cannot use inconsistencies in an alien's
statement to determine if he or she is being untruthful."); see
generally Abovian v. INS, 257 F.3d 971, 977-79 (9th Cir. 2001)
(Kozinski, J., dissenting from denial of rehearing en banc)
(critique of Ninth Circuit rule requiring materiality of
inconsistencies for use in credibility determinations). However,
in conference, opponents of the credibility provisions succeeded in
modifying the language somewhat, to add "Considering the totality
of the circumstances," as well as certain other language not
directly relevant to the heart of the claim issue. Compare H.R.
1268, div. B., tit I, § 101(a), 109th Cong. (1st Sess. 2005)
(reported in House March 16, 2005), with H.R. 1268, div. B., tit.
I, § 101(a) (Enrolled as Agreed to or Passed by Both House and
Senate). The Conference Report for the Real ID Act states that,
notwithstanding the Act's amendments to the rules for credibility
determinations then prevailing in the Ninth Circuit, such
determinations must still be "reasonable" and "take into
consideration the individual circumstances" of the applicant. H.R.
Rep. No. 109-72, at 167 (2005), reprinted in 2005 U.S.C.C.A.N. 240,
292. Senator Brownback, who had opposed the credibility

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Castañeda-Castillo v. Gonzales, 488 F.3d 17, 23 n.6 (1st Cir. 2007)

(en banc) (in case in which Real ID Act not applicable, stating

that under Real ID Act "fact-finder is entitled to draw the falsus

in omnibus inference based on inaccuracies, inconsistencies, or

falsehoods, without regard to whether they go to the heart of the

applicant's claim," although the amendment would not have changed

result in case at bar) (internal quotation marks and punctuation

omitted); Chen v. U.S. Att'y Gen., 454 F.3d 103, 106-07 n.2 (2d

Cir. 2006) (per curiam) (in case in which Real ID Act inapplicable,

stating that new provision would seem to overrule certain Second

Circuit credibility determination rules); Chen v. U.S. Att'y Gen.,

463 F.3d 1228, 1233 (11th Cir. 2006) (applying Real ID Act;

provisions, suggested that after the conference, the heart of the
claim rule should still be applicable because a contrary rule would
not be "reasonable." 151 Cong. Rec. S4838 (daily ed. May 10, 2005)
("It would not be reasonable to find a lack of credibility based on
inconsistencies, inaccuracies or falsehoods that do not go to the
heart of the asylum claim without other evidence that the asylum
applicant is attempting to deceive the trier of fact."). Thus,
Senator Brownback relied on a term that found its way into the
committee report, though not the statute itself. To the extent
that Senator Brownback's remarks conflict with the plain language
of the statute, we cannot elevate legislative history over the
statute as enacted. United States v. Shreveport Grain & Elevator
Co., 287 U.S. 77, 83 (1932). However, the requirement of
reasonableness in the conference report could be read to
contemplate a rationality requirement that is less stringent than
the old heart of the claim rule, but stops short of allowing
credibility decisions based on inconsistencies that no rational
person could consider relevant to a witness's truthfulness.
Resolution of that precise question should await a case in which it
would make a difference to the outcome, which it does not in this
case, since we cannot say it would be irrational to consider the
inconsistencies in this case relevant to Qun Lin's truthfulness.

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rejecting argument that discrepancy was trivial); Jibril v.

Gonzales, 423 F.3d 1129, 1138 n.1 (9th Cir. 2005) (opining that if

Real ID Act applied to the case, it would change result dictated by

Ninth Circuit's heart of the claim rule); In re J-Y-C-, 24 I.& N.

Dec. 260, 265 (BIA 2007) (not necessary under Real ID Act that

inconsistencies relied on in credibility determinations go to the

heart of the claim). But see Kadia v. Gonzales, 501 F.3d 817, 821-

22 (7th Cir. 2007) (in case in which Real ID Act not applicable,

expressing skepticism that Real ID Act revives "discredited"

doctrine of falsus in uno, falsus in omnibus). Consequently, we

may not reverse the BIA's decision on the ground that the

inconsistencies it relied on in affirming the adverse credibility

do not go to the heart of Qun Lin's claim.

II.

Qun Lin contends that the BIA did not take into account

the background information that he offered regarding persecution of

Falun Gong adherents. State Department country reports are

relevant in assessing an asylum applicant's credibility because

they can corroborate his story. Nagi El Moraghy v. Ashcroft, 331

F.3d 195, 203-04 (1st Cir. 2003). Moreover, the BIA is required to

consider all relevant evidence in the record. See Gailius v. INS,

147 F.3d 34, 45 (1st Cir. 1998). However, the agency is not

required to discuss every piece of evidence offered regardless of

its relation to the actual grounds of the administrative decision,

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see Morales v. INS, 208 F.3d 323, 328 (1st Cir. 2000). When the

BIA's decision is neither inconsistent with the background evidence

nor gives reason to believe the BIA was unaware of it, we have no

reason to doubt that the agency considered the evidence. Here,

nothing in the BIA's decision questions the persecution of Falun

Gong adherents in China or is inconsistent with the fact that such

persecution has occurred. The BIA's decision focused only on

inconsistencies pertaining to Qun Lin's personal story, not on

anything that could be affected by the background materials he

offered, as, for example, if the IJ had found it implausible that

Qun Lin would be arrested for exercising in his uncle's house. We

see no reason to surmise that the BIA overlooked the background

information in the record.

Finally, Qun Lin argues that the BIA erred in relying on

the fact that he was able to leave China using his own passport,

despite his assertion that he was being constantly harassed by

Public Security officials because of his association with Falun

Gong. An asylum applicant's ability to leave the alleged country

of persecution using his own identification documents may undermine

a claim that the applicant was being pursued by the government.

See Journal v. Keisler, 507 F.3d 9, 13 (1st Cir. 2007); Kheireddine

v. Gonzales, 427 F.3d 80, 87 (1st Cir. 2005); see also Ali v.

Gonzales, 401 F.3d 11, 16 (1st Cir. 2005).

Because the BIA did not err in rejecting Qun Lin's

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testimony as incredible, it did not err in rejecting his claims for

asylum, withholding of removal, and relief under the Convention

Against Torture, all of which depended vitally on that testimony.

The petition for review is DENIED.

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