FILED
NOT FOR PUBLICATION
OCT 26 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HUINAN LIN, No. 12-74203
Petitioner, Agency No. A088-290-414
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted October 12, 2017
Honolulu, Hawaii
Before: SCHROEDER, D.W. NELSON, and McKEOWN, Circuit Judges.
Huinan Lin (“Lin”) petitions for review of the Board of Immigration
Appeals’ (“BIA”) denial of her asylum and withholding of removal claim. We
have jurisdiction under 8 U.S.C. § 1252, and we grant in part, deny in part, and
remand to the BIA.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
We review factual findings, including findings that an alien has failed to
establish eligibility for asylum or withholding of removal and adverse credibility
findings, for substantial evidence. Singh v. Holder, 753 F.3d 826, 830 (9th Cir.
2014). “Where the BIA issues its own decision but relies in part on the
immigration judge’s reasoning, we review both decisions.” Flores-Lopez v.
Holder, 685 F.3d 857, 861 (9th Cir. 2012). The BIA’s finding of ineligibility for
relief will be reversed only if the evidence “compels” the reversal. Tang v.
Gonzales, 489 F.3d 987, 990 (9th Cir. 2007). “Whether an immigration
proceeding violates an alien’s due process rights is a purely legal issue and is
reviewed de novo.” Hamazaspyan v. Holder, 590 F.3d 744, 747 (9th Cir. 2009)
(citation omitted).
First, Lin’s opening brief does not specifically challenge or discuss the
BIA’s finding that she failed to show a well-founded fear of future persecution in
China based on the fact that she has two children, one of whom was born in the
United States. Accordingly, Lin has waived any challenge to this finding. See
Martinez-Serrano v. I.N.S., 94 F.3d 1256, 1259 (9th Cir. 1996).
Lin also argues that using her husband, Huomin Cao’s (“Cao”) asylum
application and transcript violated her Fifth Amendment right to a full and fair
hearing because she was not given the opportunity to produce Cao’s testimony or
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to review the materials from his immigration proceedings. However, Lin never
presented this claim to the BIA. Further, the error was procedural, given that the IJ
could have adjourned the hearing to provide the Petitioner an opportunity to
produce her husband’s testimony and to review the evidence the government
introduced. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004). Thus,
Lin’s due process claim is unexhausted such that the panel lacks jurisdiction to
address it. Sola v. Holder, 720 F.3d 1134, 1135 (9th Cir. 2013).
Finally, the BIA’s adverse credibility determination was not supported by
substantial evidence because the BIA, in adopting the Immigration Judge’s (“IJ”)
rationale, used omissions and discrepancies in Cao’s asylum application and
testimony in his own immigration proceedings to find Lin not credible. See Bao v.
Gonzalez, 460 F.3d 426, 431–32 (2d Cir. 2006) (finding that there was no basis for
assuming Bao’s account was fabricated and her husband Zheng’s was the correct
account of facts). The IJ found that nothing in Lin’s demeanor detracted from her
credibility, yet rejected all of Lin’s explanations, even when she stood by her own
version of events. We conclude that the overall reliance on Cao’s asylum
application and prior testimony was arbitrary.
As Lin argues, the totality of the circumstances compel that she should be
deemed credible. Because neither the BIA nor the IJ made an adverse credibility
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finding against Lin’s witness, Xiao Qin Lin (“Qin Lin”), we treat her factual
allegations as true. See Aguilar-Ramos v. Holder, 594 F.3d 701, 704 (9th Cir.
2010). Qin Lin testified that she knew Lin was involuntarily taken by officials to
have the abortion performed. Qin Lin stated that she took care of Lin two days
after the abortion while she was crying, pale, and weak. See Shrestha v. Holder,
590 F.3d 1034, 1040–41 (9th Cir. 2010) (stating that the IJ should not ignore
evidence that corroborates the alien’s claim). The 1999 Country Conditions Report
notes that forced abortions and sterilizations occurred despite China’s official
policy. Zhu v. Gonzales, 493 F.3d 588, 598 (5th Cir. 2007). Further, as part of the
evidence in her case, Lin provided documentation from Jiangjing Town Hospital
showing that she had an abortion on December 27, 2000. Lin also provided a
notice addressed to her to report for IUD and pregnancy checks from the Cangxi
Village Committee. The notice stated that if she did not report to the Family
Planning Office, she “will be punished pursuant to relevant Family Planning
Regulations.” A note from Dr. Gwendolyn P. Chung and Dr. Diana Y. Huang in
Hawaii showed that Respondent’s second IUD was removed on September 15,
2008. The Government did not object to the submission of these copies and there
was nothing in the record to “support a finding that the documents [were] not
credible.” See Wang v. Ashcroft, 341 F.3d 1015, 1021 (9th Cir. 2003) (finding
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documentary support credible where “there was no opposition to the introduction
or challenge to the authenticity of these documents by the INS,” even where the IJ
found the documents unbelievable). Because the documentation and Qin Lin’s
testimony are credible, they corroborate her past persecution claim, i.e., that she
had a forced abortion and multiple IUD insertions. See Shrestha, 590 F.3d at
1040–41.
After a reversal of an adverse credibility determination, “[w]e must now
decide whether we determine eligibility for asylum and withholding of removal or
whether we remand for a determination by the BIA.” Wang, 341 F.3d at 1023. As
set forth above, this Court finds credible Lin’s claim that she was forced to abort
her pregnancy. See He v. Ashcroft, 328 F.3d 593, 604 (9th Cir. 2003). As a victim
of forced abortion, Lin is therefore statutorily eligible for asylum and “entitled to
withholding of removal as a matter of law.” Tang, 489 F.3d. at 992. Based on the
totality of circumstances, there is no “reasonable prospect from the administrative
record that there may be additional reasons upon which the IJ or BIA could rely” to
find her claim not credible. Soto-Olarte v. Holder, 555 F.3d 1089, 1094-95 (9th
Cir. 2009).
In sum, we grant the petition in part and hold that Lin is entitled to
withholding of removal as a matter of law. In addition, since Lin is statutorily
5
eligible for asylum, we remand to the BIA so that the Attorney General may
exercise its discretion in granting asylum. See 8 U.S.C. § 1158(b)(1); Tang, 489
F.3d. at 992. We deny the petition in part as to the due process violation claim and
challenge to the IJ’s finding of fear of future persecution.
The parties shall bear their own costs on appeal.
GRANTED IN PART, DENIED IN PART, and REMANDED.
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