Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
11-18-2008
Lin v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-2927
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-2927
___________
LI HUI LIN,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A99-672-998)
Immigration Judge: Honorable Margaret R. Reichenberg
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 14, 2008
Before: BARRY, SMITH and GARTH, Circuit Judges
(Opinion filed: November 18, 2008 )
___________
OPINION
___________
PER CURIAM
Li Hui Lin, a Chinese native and citizen, petitions for review of a final order of the
Board of Immigration Appeals (“BIA”) affirming the denial by the Immigration Judge
(“IJ”) of Lin’s application for asylum, withholding of removal and relief under the
Convention Against Torture (“CAT”). Before the IJ, Lin testified that he had suffered
past persecution and feared future persecution by the Chinese government as a
practitioner of Christianity. Specifically, Lin alleged that in July 2002, at the urging of
his friend and to alleviate his depression, he joined an “underground” Christian church.
According to Lin, the authorities discovered his church attendance, arrested, interrogated,
and beat him and one year later, after he escaped a second church raid, came to his house
and threatened his parents. Lin testified that, fearing future persecution, he went to live
with his aunt for six months and then fled to the United States.
The IJ, in an order denying Lin’s various petitions for relief, determined that Lin
was not credible with regard to his encounters with the police and the consistency of his
church attendance in China. The IJ also found that, even if Lin’s testimony was credible,
it did not establish that he suffered past persecution or a well-founded fear of future
persecution. The IJ also rejected Lin’s CAT claim. The BIA affirmed the IJ’s decision.
We have jurisdiction pursuant to 8 U.S.C. § 1252(a). We uphold the BIA’s
determinations if they are supported by reasonable, substantial and probative evidence on
the record considered as a whole. Yusupov v. Att’y Gen., 518 F.3d 185, 197 (3d Cir.
2008). Where the BIA substantially relies on the IJ’s adverse credibility determination,
we have jurisdiction to review both opinions. Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir.
2004).
To be granted asylum, Lin must show that he is “unable or unwilling to return to
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[China] . . . 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); see also 8 U.S.C. § 1158(b)(1)(A). To be eligible for
withholding of removal, Lin must demonstrate that “there is a greater-than-fifty-percent
chance of persecution” in China based on one of these protected grounds. Senathirajah v.
INS, 157 F.3d 210, 215 (3d Cir. 1998); see also 8 U.S.C. § 1231(b)(3)(C). For relief
under the CAT, Lin must demonstrate that it is more likely than not that he would be
tortured if removed to China. See 8 C.F.R. § 208.16(c)(2).
The BIA’s finding that Lin’s testimony was not credible is supported by substantial
evidence. See Sukwanputra v. Gonzales, 434 F.3d 627, 636 (3d Cir. 2006) (an adverse
credibility determination is appropriately based on inconsistent statements and
contradictory evidence). The IJ disbelieved Lin’s testimony regarding the number of
times he attended the underground church. The IJ found that Lin’s testimony that he
attended church only five or six times during a two-year period (before the 2004 incident)
conflicted with letters Lin submitted from his friend who portrayed him as a more active
church member. Lin further testified that, after the April 2004 incident, he did not go to
church until December 2005 when his church was once again raided by the village cadre
(which led to Lin fleeing to his aunt’s house). The IJ found that this testimony conflicted
with Lin’s statement, his father’s statement, and his friend’s statement which all indicated
that Lin continued to attend church after the 2004 raid. Lin does not explain the
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inconsistency but states, without support, that he believes that his testimony was
consistent with the letters from his friend and his father. The IJ’s credibility
determination, however, is supported by specific and cogent reasons and “flow[s] in a
reasoned way from the evidence of record.” Dia v. Ashcroft, 353 F.3d 228, 250 (3d Cir.
2003).
Because Lin cannot satisfy the standard for asylum, he cannot satisfy the higher
burden of proof for withholding of removal. Janusiak v. INS, 947 F.2d 46, 47 (3d Cir.
1991). Nor does the record show that Lin would likely be tortured by or with the
acquiescence of a Chinese official. Therefore, he is not eligible for protection under the
CAT. Pierre v. Att’y Gen., 528 F.3d 180, 190 (3d Cir. 2008) (en banc).
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