Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
12-8-2005
Lin v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-3598
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-3598
KENG LIN,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
(No. A95-369-502)
Submitted pursuant to LAR 34.1(a) September 26, 2005
Before: ALITO, AMBRO, and LOURIE,* Circuit Judges.
(Opinion Filed: December 8, 2005)
OPINION OF THE COURT
*
Honorable Alan D. Lourie, Judge of the United States Court of Appeals for the
Federal Circuit, sitting by designation.
PER CURIAM:
Keng Lin seeks review of an order from the Board of Immigration Appeals
denying his request for withholding of removal. We deny the petition for review.
I.
As we write only for the parties, we do not set forth the full background of the
case. Lin, a native and citizen of China, filed an application for asylum, withholding of
removal and relief under the Convention Against Torture. The IJ rejected Lin’s asylum
application as untimely. The IJ also concluded that Lin’s entire story was not credible
and that his application was frivolous. Finally, the IJ found that even if Lin’s allegations
were true, he did not qualify for withholding of removal because his own testimony
indicated that he no longer faces a threat of persecution. Accordingly, the IJ denied Lin’s
request for withholding of removal and relief under the Convention Against Torture. The
Board affirmed the IJ’s order without opinion.
In this petition, Lin challenges only the IJ’s denial of his request for withholding of
removal.1 Lin argues that the IJ erred in two ways. First, Lin claims the IJ’s adverse
credibility determination was not supported by substantial evidence. Second, Lin argues
that the IJ erred in finding his application frivolous because the IJ engaged in circular
1
The IJ’s determination that Lin’s asylum application was untimely is not subject
to judicial review. See 8 U.S.C. § 1158(a)(3); Tarrawally v. Ashcroft, 338 F.3d 180, 185
(3d Cir. 2003). Lin does not contest the IJ’s rejection of his claim under the Convention
Against Torture.
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reasoning and failed to identify the specific portions of Lin’s application that the IJ
deemed to be fabricated.2 We consider each argument in turn.
II.
An applicant is entitled to withholding of removal if upon return to his home
country his life or freedom would be threatened because of his race, religion, nationality,
membership in a particular social group, or political opinion. 8 U.S.C. § 1231(b)(3)(A).
The Attorney General must grant withholding of removal if the petitioner demonstrates a
“clear probability” of such persecution. INS v. Stevic, 467 U.S. 407, 413 (1984);
Tarrawally v. Ashcroft, 338 F.3d 180, 186 (3d Cir. 2003). A “clear probability” means
that it is “more likely than not” that the petitioner would be subject to persecution. Stevic,
467 U.S. at 429-30. A showing of past persecution gives rise to a rebuttable presumption
of a well-founded fear of future persecution. 8 C.F.R. § 1208.13(b)(1); Li v. Atty Gen. of
the United States, 400 F.3d 157, 162 (3d Cir. 2005).
Whether a petitioner faces a clear probability of persecution is a question of fact
reviewed under the substantial evidence standard. See Gao v. Ashcroft, 299 F.3d 266,
2
Lin makes two additional arguments not considered in this opinion: first, that the
IJ erred by excluding documentary evidence offered to corroborate his testimony; and
second, that the IJ erred in concluding that, even if Lin’s allegations are true, changed
circumstances suggest that he no longer faces a clear probability of persecution. Because
Lin did not raise the first issue before the Board of Immigration Appeals, we lack
jurisdiction to consider this claim. See 8 U.S.C. § 1252(d)(1); Abdulrahman v. Ashcroft,
330 F.3d 587, 594-95 (3d Cir. 2003). We do not reach the latter question because we
hold that the IJ’s adverse credibility determination is supported by substantial evidence.
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272 (3d Cir. 2002). “[A]dministrative 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). Where, as here, the Board affirms an IJ’s decision without opinion, the
IJ’s decision becomes the final agency determination. 8 C.F.R. § 1003.1(e)(4); Gao, 299
F.3d at 271. “When the BIA defers to an IJ, a reviewing court must, as a matter of logic,
review the IJ’s decision to assess whether the BIA’s decision to defer was appropriate.”
Abdulai v. Ashcroft, 239 F.3d 542, 549 n.2 (3d Cir. 2001).
III.
Lin’s main contention is that the IJ’s denial of his request for withholding of
removal was based on an erroneous credibility determination. Lin makes two broad
arguments in support of this claim: first, that the inconsistencies identified by the IJ are
not sufficient to warrant an adverse credibility determination; and second, that at least
part of the IJ’s credibility determination was based on impermissible speculation. We
consider both arguments below.
A.
“Adverse credibility findings are afforded substantial deference so long as the
findings are supported by specific cogent reasons.” Gao v. Ashcroft, 299 F.3d 266, 276
(3d Cir. 2002). “The reasons must be substantial and bear a legitimate nexus to the
finding.” Id. This Court examines an adverse credibility determination to ensure that it
was based on inconsistent statements, contradictory evidence, and inherently improbable
4
testimony. See Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir. 2003). “Where an IJ bases an
adverse credibility determination in part on ‘implausibility’ ... such a conclusion will be
properly grounded in the record only if it is made against the background of the general
country conditions.” Id. at 249 (citing Gao, 299 F.3d at 278-79; He v. Ashcroft, 328 F.3d
593, 603 (9th Cir. 2003)).
An adverse credibility determination is a finding of fact. Dia, 353 F.3d at 247; see
also Gao, 299 F.3d at 272. Under the substantial evidence standard of review,
“administrative 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).
B.
Lin first claims that the inconsistencies identified by the IJ were not sufficient to
support an adverse credibility determination. We disagree.
The IJ’s adverse credibility determination was based on numerous examples of
contradictory or arguably implausible testimony. Two examples seem particularly
significant.
First, the IJ did not accept various aspects of Lin’s account of the February 25,
2001 incident in which his wife was allegedly arrested and taken against her will to a
birth control office for sterilization. Lin initially said he was at the bus station and his
wife was at the village at the time of the arrest; he then changed his story and stated that
his wife was at the bus station while he was working. When the IJ pointed out the
5
contradiction, Lin denied having made his earlier statement; after his taped testimony was
played back for him, he said he had been mistaken. The IJ thought it was “totally
inconceivable” that the first statement was a mistake because Lin had repeated his
misstatement several times before correcting himself.
The IJ also did not think it credible that Lin’s wife and the officials who arrested
her said nothing to one another during the course of the incident. According to Lin’s
testimony, the arresting officials saw his wife at the bus station, recognized her, and
dragged her away to the birth control office. The IJ found it “totally incredible” that
“there was no interaction between the birth control officials and the respondent’s wife, ...
and that they merely started dragging her off for sterilization.” App. 9.
Second, the IJ thought Lin’s testimony as to why he went into hiding in March
2001 contradicted his reasons for emerging from hiding before leaving China. Lin
testified that after he was fired he had an argument with his boss in which Lin criticized
China’s one-child policy; following this argument, Lin stated, it was necessary to go into
hiding to avoid being found by the police. On cross-examination, however, Lin testified
that he felt it was safe for his family to come out of hiding because they had paid the
majority of their fine, even though Lin’s earlier testimony indicated that the majority of
the fine had already been paid at the time they went into hiding. In addition, Lin testified
that he had to pay the remaining portion of his fine within one or two days, although his
written statement stated that he was given one month to pay in full.
6
Lin suggests that the inconsistencies and mistakes in his testimony were
attributable to poor memory, nervousness and mistranslation rather than deception, but we
cannot say that a reasonable adjudicator would be compelled to find Lin’s testimony
credible in light of the contradictions and implausible statements noted by the IJ. Nor can
we agree that these features of Lin’s testimony do not go to the heart of his claim. The
incident in which his wife was arrested and coercively sterilized is the crux of Lin’s claim
that he suffered persecution under the one-child policy. The same may be said of Lin’s
alleged need to hide from the authorities after criticizing that policy. As noted above, the
IJ had plausible reasons for thinking both accounts not credible.
Finally, Lin claims that the IJ’s credibility determination was erroneous because it
was based on impermissible speculation. The only example Lin cites is the IJ’s rejection
of Lin’s account of the incident in which Lin’s wife was allegedly arrested. As noted
above, the IJ thought it “implausible” and “incredible” that the authorities would drag his
wife away without any exchange of words. We think the IJ’s skepticism is
understandable, particularly in light of the fact that Lin’s wife, according to Lin’s written
statement, physically struggled with the authorities at the time of her arrest. It is of course
possible that the episode occurred as Lin alleged, but the IJ might reasonably have
doubted that no words would be exchanged before or during this violent confrontation. In
any case, however, the IJ had additional valid reasons for doubting the truth of this
account as well as other allegations central to Lin’s application.
7
In sum, the IJ’s adverse credibility determination has a reasonable basis in the
record and was supported by substantial evidence.
IV.
Lin next contests the IJ’s determination that his application was frivolous. That
conclusion, Lin argues, was erroneous for two reasons: first, because the IJ failed to
identify the portions of Lin’s application he deemed fabricated; and second, because the
IJ engaged in circular reasoning. The record does not support either claim.
“[A]n asylum application is frivolous if any of its material elements is deliberately
fabricated.” 8 C.F.R. § 1208.20. “Such finding shall only be made if the immigration
judge or the Board is satisfied that the applicant, during the course of the proceedings, has
had sufficient opportunity to account for any discrepancies or implausible aspects of the
claim.” Id.
In addition to stating his general conclusion that Lin’s testimony was fabricated,
App. 13, the IJ specifically found that Lin fabricated his account of the episode in which
his wife was arrested, App. 8. Lin was given an opportunity to explain the
inconsistencies in his testimony regarding the alleged arrest, which was unquestionably
central to Lin’s application. Thus, the IJ’s determination that Lin’s account was
fabricated satisfies all the requirements set forth in 8 C.F.R. § 1208.20.
Contrary to Lin’s assertion, we have no reason to think the IJ engaged in circular
reasoning. The IJ found that Lin’s entire case-in-chief was not credible. He cited
8
numerous examples of incredible or implausible testimony, and specifically identified at
least one material element of the application he deemed fabricated. Based on these
findings, the IJ concluded that Lin’s application was frivolous. This is the exact mode of
analysis prescribed by regulation. Thus, the IJ’s determination that Lin’s application was
frivolous is supported by substantial evidence.
For the reasons stated above, we deny the petition for review.
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