NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0551n.06
Filed: September 5, 2008
No. 07-3988
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
YU LIN,
Petitioner,
v. On Petition for Review of an
Order of the Board of
MICHAEL B. MUKASEY, Attorney General, Immigration Appeals
Respondent.
/
Before: GUY, BATCHELDER, and McKEAGUE, Circuit Judges.
RALPH B. GUY, JR., Circuit Judge. Petitioner Yu Lin seeks review of the final
order of the Board of Immigration Appeals (BIA) dismissing her appeal from the
Immigration Judge’s (IJ) decision denying her application for asylum, withholding of
removal, and relief under the Convention Against Torture (CAT). In this appeal, petitioner
challenges the BIA’s finding that the record supported the IJ’s adverse credibility
determination, and argues for remand to the BIA on the grounds that the record is
incomplete. After review of the record and the applicable law, we deny the petition for
review.
I.
No. 07-3988 2
Lin, a native and citizen of China, entered the United States on April 4, 2005. She
gave a sworn statement to an asylum officer at Los Angeles International Airport that day,
and underwent a “credible fear” interview on April 8, 2005. On both occasions, Lin said she
came to the United States because she was a Falun Gong practitioner and feared that she
would be harmed if she returned to China. Lin stated that she had no relatives in the United
States, and that she lost her Chinese passport while in transit. Lin stated during the credible
fear interview that she had become a Falun Gong practitioner in April 2004, but she was
unable to give many specifics about the religion. Lin also reported that she had one brother
and one sister. The Department of Homeland Security served petitioner with a Notice to
Appear charging her with removability as an alien not in possession of valid entry and travel
documents, which she would later concede. See 8 U.S.C. § 1182(a)(7)(A)(i)(I).
On October 19, 2005, Lin filed an asylum application contradicting her earlier claim
and explaining that “Mr. Zhang,” the “snakehead” who helped her, told her to say that she
was a Falun Gong practitioner so she could stay in the United States.1 Instead, Lin asserted
a claim of persecution based on her opposition to China’s coercive family-planning policies.
Specifically, Lin attested that the Chinese government required unmarried females over the
age of 18 to report for a physical examination every six months to check for pregnancy and
sexual activity. If pregnant, the unmarried woman would be forced to have an abortion.
Failure to appear would result in monetary penalties, which, if not paid, could result in the
denial of the necessary certificates to marry, work, go to school, or live in a city other than
1
“Snakehead” usually refers to a Chinese smuggler who gets people out of China for a fee.
Petitioner testified that her parents paid Zhang $70,000 to help her enter the United States.
No. 07-3988 3
her home village. Lin stated that she missed an exam in 2000, and her parents raised the
money to pay the fine of 5,000 yuan (or $687). She also “missed 1-2 additional exams in
2001 and 2002,” but was unable to pay the penalties. As a result, Lin was denied the
certifications that would allow her to work legally, to marry, or to live or work outside her
home village. She stated that her registration was cancelled and that she could be arrested
for failing to pay the fines.
Lin further stated, in contrast with her earlier statements, that she had three sisters and
one brother and that she was the second oldest of the five children. She wrote that her
mother, while pregnant with her fourth child, received official notice requiring her to report
for an abortion and sterilization. When her mother did not report, government officials came
to their home and tried unsuccessfully to drag her out. A few days later, government officials
returned with sledgehammers and smashed their home and belongings. The family fled to
another province, but left petitioner’s older sister, Quing Lin, to live with an aunt. According
to petitioner, the sister told her that government officials came looking for their parents and
told her that she would not qualify for high school because her parents did not obey the “one
family one child” policy.
Petitioner’s asylum hearing was held on March 29, 2006, the same day as the hearing
on the asylum application of her older sister Quing Lin.2 The IJ noted his familiarity with
the sister’s testimony, acknowledged that both sisters’ claims were based on fear of
persecution for opposition to China’s coercive “pregnancy check” policies, and accepted the
2
The record indicates that Quing Lin entered the United States illegally one month before petitioner.
No. 07-3988 4
request that the sister’s testimony be transcribed and made part of the record in petitioner’s
case. 3 In an oral decision at the conclusion of the hearing, the IJ found that, unlike the sister,
petitioner was not credible. As a result, the IJ denied petitioner’s application for asylum,
withholding of removal, and protection under the CAT.
Petitioner’s timely appeal was dismissed by the BIA, which explained that the IJ
properly based the adverse credibility determination on discrepancies between petitioner’s
initial statements and her testimony before the immigration judge. The BIA found that the
noted discrepancies constituted significant evidence of a lack of credibility, that the IJ’s
adverse credibility determination was not clearly erroneous, and that petitioner failed to meet
her burden of proof for asylum, withholding of removal, or relief under the CAT. This
timely petition for review followed.4
II.
A. Asylum and Withholding of Removal
When the BIA adopts the IJ’s reasoning, this court reviews the IJ’s decision directly
to determine whether the decision of the BIA should be upheld. Gilaj v. Gonzales, 408 F.3d
275, 282-83 (6th Cir. 2005). We review the legal determinations made by the IJ or BIA de
novo, but review the factual findings for substantial evidence. Mikhailevitch v. INS, 146 F.3d
384, 388 (6th Cir. 1998). Credibility determinations—which are the focus of this
appeal—are considered to be findings of fact that are reviewed under the substantial evidence
3
The fact that the sister’s testimony is not part of the record is the basis for petitioner’s request for
remand to the BIA.
4
Lin has abandoned her claim for protection under the CAT in this appeal.
No. 07-3988 5
standard. Sylla v. INS, 388 F.3d 924, 925 (6th Cir. 2004). Such 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). Under this standard, the decision of the IJ or BIA
should be upheld unless the evidence not only supports a contrary conclusion, but compels
it. Yu v. Ashcroft, 364 F.3d 700, 702-03 (6th Cir. 2004).
Resolution of a request for asylum involves a two-part inquiry, under which the
petitioner must show that she qualifies as a “refugee” and that she merits a favorable exercise
of discretion. Id. at 702. A “refugee” is defined as an alien who is unable or unwilling to
return to her home country “because of persecution or a well-founded fear of persecution on
account of race, religion, nationality, membership in a particular social group, or political
opinion.” 8 U.S.C. § 1101(a)(42)(A). The definition further provides, in pertinent part, that
a person who has been persecuted for “resistance to a coercive population control program,
shall be deemed to have been persecuted on account of political opinion.” Id. at §
1101(a)(42)(B).
“The testimony of the applicant, if credible, may be sufficient to sustain the burden
of proof without corroboration.” 8 C.F.R. § 1208.13(a). “When an IJ determines that an
alien’s testimony lacks credibility, the IJ must include in his or her decision ‘specific reasons’
explaining why the IJ reached such a conclusion.” Singh v. Ashcroft, 398 F.3d 396, 402 (6th
Cir. 2005). We have also held that an adverse credibility finding must be “based on issues
that go to the heart of the applicant’s claim.” Sylla, 388 F.3d at 926. This requirement has
been modified, however, by provisions of the REAL ID Act of 2005, which apply to this case
No. 07-3988 6
because petitioner filed her application after the effective date of May 11, 2005. 8 U.S.C.
§ 1158(b)(1)(B)(iii) (as amended by REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat.
231 May 11, 2005); see also Amir v. Gonzales, 467 F.3d 921, 925 n.4 (6th Cir. 2006). Under
the applicable standards, the factfinder may base a credibility determination on “all relevant
factors,” including “any inaccuracies or falsehoods in [the applicant’s] statements, without
regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the
applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii) (as amended).5
Given petitioner’s admission that she “did not tell the truth” in the statements taken
at the airport or during the credible fear interview that followed several days later, credibility
was the central focus of the hearing before the IJ. Petitioner testified that she had lied
because “Mr. Zhang” told her to, and argues that the IJ failed to assess the adequacy of this
explanation. On the contrary, the IJ considered the explanation and found it lacking:
In this case, [petitioner] testified that she was told by Mr. Zhang, who
the Government correctly pointed out on closing argument is not available for
cross-examination, to tell officers of the United States Government that she
feared returning to China because she was a practitioner of Fal[un] Gong.
[Petitioner] made that statement not once but twice, to the officer at the airport
and then again after she had had a chance to rest and compose herself some
four days later in the interview with the asylum officer. Indeed, it was at this
second interview that respondent fleshed out, so to speak, her Fal[un] Gong
case by saying that she had been a member . . . since April 2004 and she was
a member . . . to improve her health.
5
Other “relevant factors” include: the petitioner’s demeanor, candor, or responsiveness; the inherent
plausibility of her account; the consistency between her statements, oral or written, regardless of when they
were made or whether they were taken under oath; and the consistency of those statements internally and
with other evidence in the record. 8 U.S.C. § 1158(b)(1)(B)(iii). The provisions governing credibility
determinations with respect to the withholding of removal were similarly modified by the REAL ID Act.
8 U.S.C. § 1229a(c)(4)(C) (as amended).
No. 07-3988 7
. . . [I]n light of the circumstances under which these statements were
made, the court finds that [petitioner] is not credible. [She] has established
that she will say pretty much anything to be granted asylum and to remain in
the United States. Her explanation that Mr. Zhang told her to say one thing but
she is telling the truth today is not availing. Mr. Zhang is not available for
cross-examination and indeed the explanation [she] gives pins all of the blame
on the mysterious and non-present Mr. Zhang.
This explanation is particularly unavailing when viewed in the light of
her sister’s application and testimony earlier in the afternoon. Her sister based
her claim throughout the proceedings and before the Asylum Office on her
opposition to the coerced family planning practices of the Chinese
government. There was no need for this [petitioner] to lie if she really feared
returning to China because of her opposition to coerced family planning yet
she did so on two separate occasions and in situations when she was assisted
by an interpreter and had time to reflect about the wrongness of lying to
immigration officials.
The IJ found, notwithstanding the “congruence” of petitioner’s claim with her sister’s, that
petitioner’s claim had no reliability. Finding that petitioner was not credible, the IJ
concluded that petitioner failed to meet her burden of proof on any of her claims.
We find that, under these circumstances, the IJ was entitled to rely on the admitted
falsehoods and material inconsistencies in petitioner’s statements to make an adverse
credibility determination. Indeed, the IJ recognized that it was particularly convenient for
petitioner to blame “Mr. Zhang,” who could not be cross-examined. Keeping in mind our
standard of review, the IJ’s adverse credibility determination is conclusive “unless any
reasonable adjudicator would be compelled to conclude to the contrary.” Petitioner has not
demonstrated that a reasonable factfinder would be compelled to accept her explanation for
lying about the basis for her claims and find her to be credible.
Finally, an applicant seeking withholding of removal has to meet a more stringent
No. 07-3988 8
burden of proof, which requires that she establish a clear probability that she would be
subjected to persecution if forced to return to her home country. Mikhailevitch, 146 F.3d at
391. As a result, an applicant who fails to show eligibility for asylum necessarily does not
qualify for withholding of removal. Singh, 398 F.3d at 401.
B. Remand
In a further assignment of error, petitioner argues for remand to the BIA so that the
transcript of the proceedings in the case of petitioner’s sister could be made part of the record
in this case. To be sure, the IJ granted the request that the record in this case include the
transcript of the hearing in petitioner’s sister’s case. There seems to be no dispute that the
government failed to meet its obligation to prepare a reasonably accurate and complete
record of the removal hearing on appeal to the BIA. Sterkaj v. Gonzales, 439 F.3d 273, 279
(6th Cir. 2006). As in Sterkaj, however, we lack jurisdiction to consider this claim because
petitioner did not raise this issue before the BIA. In that case, we explained that: “Although
an alien’s due process challenge generally does not require exhaustion (the BIA lacks
authority to review constitutional challenges), the alien must raise correctable procedural
errors to the BIA.” Id.; see also Ramani v. Ashcroft, 378 F.3d 554, 559 (6th Cir. 2004)).6
The petition for review is DENIED.
6
We further note that to establish a due process violation requires proof of both an error and
substantial prejudice. Sterkaj, 439 F.3d at 279 n.2. We have held that a petitioner who claims that the
government provided an inaccurate or incomplete record must show that a complete and accurate record
would have changed the outcome of the case. Garza-Moreno v. Gonzales, 489 F.3d 239, 241-42 (6th Cir.
2007). Petitioner has not attempted to make this showing, but asserts generally that the sister’s testimony
would be relevant because her apparently successful claim for asylum also claimed persecution for
opposition to the same coercive family-planning policies. There is no suggestion in petitioner’s arguments
here, or before the BIA, that petitioner’s sister would have corroborated petitioner’s own claim of
persecution.