Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
12-13-2007
Lin v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-2985
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-2985
SHUN LIN,
Petitioner
v.
ATTORNEY GENERAL OF
THE UNITED STATES,
Respondent
__________
Petition for Review of an Order of the
United States Department of Justice
Board of Immigration Appeals
BIA No. A97-949-929
Immigration Judge: Eugene Pugliese
__________
Submitted Under Third Circuit LAR 34.1(a)
on November 29, 2007
Before: BARRY, FUENTES, Circuit Judges, and DIAMOND,* District Judge.
(Filed: December 13, 2007)
OPINION
*
Honorable Paul S. Diamond, District Judge for the United States District Court of
the Eastern District of Pennsylvania, sitting by designation.
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FUENTES, Circuit Judge.
Petitioner Shun Lin, a native and citizen of China, seeks review of the BIA’s
decision denying his appeal and affirming the Immigration Judge’s denial of his asylum
application. The IJ denied Lin’s application for asylum, withholding of removal under
the Refugee Convention and the Convention Against Torture (“CAT”) after making an
adverse credibility determination. Lin filed a timely petition for review of the BIA’s final
order of removal. We have jurisdiction pursuant to § 242(a)(1) of the Immigration and
Naturalization Act (“INA”), 8 U.S.C. § 1252(a)(1). For the reasons set forth below, we
deny the petition.
I. Background
Lin entered the United States on March 2, 2004. He was issued a Notice to Appear
on March 4, 2004 and removal proceedings were commenced. On the same day Lin
underwent a credible fear interview. During the interview, Lin claimed that he sought
asylum because he had violated China’s family planning policy by fathering a child. On
September 2, 2004, Lin submitted an asylum application. Despite his earlier claim that he
feared persecution because of his violation of China’s family planning policy, Lin sought
asylum on the ground that he feared persecution for practicing Falun Gong. In his
application, Lin admitted that he was not married, did not have any children and that he
had fabricated his story about violating the family planning policy.
On February 22, 2005 a merits hearing was held and Lin testified that he left China
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because he suffered persecution for practicing Falun Gong. When asked about his
credible fear interview and his claim of persecution for violating family planning policies
he testified he did not tell the truth because of threats from “the snakehead.” In denying
Lin’s asylum application, the IJ found Lin’s testimony to be “vague”, “meager”, “utterly
unconvincing” and inconsistent in numerous respects with regard to his practice of Falun
Gong. The BIA adopted and affirmed the IJ’s adverse credibility determination.
II. Discussion
We have jurisdiction to review both the decision of the BIA and the decision of the IJ,
where the BIA adopts the findings of the IJ, substantially relying upon the adverse
credibility finding of the IJ and discusses some but not all of the IJ’s reasons for the
decision. See Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir. 2004). We review the
decisions of immigration judges, including adverse credibility determinations, under the
substantial evidence standard, which requires us to ascertain “whether the determination
is supported by evidence that a reasonable mind would find adequate.” Dia v. Ashcroft,
353 F.3d 228, 249 (3d Cir. 2003) (en banc).
In his petition for review, Lin argues that the IJ’s adverse credibility determination was
based on speculation and minor discrepancies that do not go to the heart of his asylum
application and thus cannot constitute substantial evidence. He also asserts that he
demonstrated fear of future persecution. After careful review of the record, we find Lin’s
arguments wholly unavailing.
At the hearing before the IJ, Lin testified that since he began practicing Falun Gong, in
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2002, he had never practiced it in public because it was forbidden by the authorities.
However, this claim was contradicted by his testimony that he passed out flyers relating
to Falun Gong in the street on two occasions. Lin alleged that the second time he was
distributing flyers, two police officers approached him and beat him up. He testified that
this central event occurred on September 25, 2002. Yet, his written application indicates
that the date of this event was November 8, 2002. Contrary to Lin’s assertion, this was
not a minor discrepancy about a tangential fact. Rather, it was nearly a two-month
discrepancy about the central event to his claim of persecution. On appeal, Lin now
asserts that he “may have provided a convincing explanation for the discrepancy [because
he might have been referring] to the Chinese lunar calendar at one of the occasions.” Pet.
Br. at 10. This post hoc attempt to explain the discrepancies in his testimony and sworn
statements does not undermine the IJ’s adverse credibility determination.
Lastly, the IJ noted that when Lin was interviewed by an Asylum officer he claimed that
his basis for asylum was because he had a child while he was under age in violation of
China’s birth control policies but made no mention of his practice of Falun Gong. We
have held that an IJ is in the best position “to observe an alien’s tone and demeanor, to
explore inconsistencies in testimony” and is “uniquely qualified to decide whether an
alien’s testimony has about it the ring of truth.” Abdulrahman v. Ashcroft, 330 F.3d 587,
597 (3d Cir. 2003) (quotation omitted). Here, we conclude that the IJ’s adverse
credibility determination was not based on impermissible conjecture or speculation but
supported by “specific, cogent reasons.” Dia, 353 F.3d at 249.
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The BIA determined that the IJ did not base his adverse credibility determination solely
on the inconsistencies between Lin’s statement during his credible fear interview and his
testimony at the merits hearing. It also noted that the IJ did not accord the inconsistencies
undue weight. The Board stated that the IJ instead used the inconsistencies to
demonstrate the “evolution” of Lin’s claim and to explain why detailed, consistent
testimony about his Falun Gong claim, which he failed to provide, was necessary. The
Board found that the discrepancies were sufficient to support the IJ’s adverse credibility
determination. We agree and conclude that the IJ’s adverse credibility determination was
based on substantial evidence.
III. Conclusion
For the foregoing reasons, we will deny the petition for review.
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