Lin Qin v. Ashcroft

United States Court of Appeals
For the First Circuit

No. 03-1352

LIN QIN,

Petitioner,

v.

JOHN ASHCROFT, Attorney General,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS

Before

Boudin, Chief Judge,
Lynch, Circuit Judge, and
Lipez, Circuit Judge.

William A. Hahn, with whom Hahn & Matkov was on brief, for
petitioner.
Joan E. Smiley, Trial Attorney, Office of Immigration
Litigation, with whom Richard M. Evans, Assistant Director, and
Peter D. Keisler, Assistant Attorney General, Civil Division, were
on brief, for respondent.

March 15, 2004
 LYNCH, Circuit Judge. Lin Qin, a native and citizen of

the People's Republic of China, seeks review of the BIA's denial of

her applications for asylum, withholding of removal, and relief

under the United Nations Convention Against Torture (CAT). Finding

substantial evidence to support the Immigration Judge's adverse

credibility determination, we affirm.

I.

In February 1999, petitioner Lin Qin illegally entered

the United States. Her immigration from China was arranged by a

"snakehead"1 to whom she paid $50,000 for smuggling her into the

country with a fake passport. After reuniting in Boston with her

husband from China, Xue Rong Zheng, who had himself illegally

entered the United States in 1994, Lin became pregnant and gave

birth to a baby girl in the United States in late December 1999.

At around the time that her child was born, Lin applied for asylum.

On May 26, 2000, the Immigration and Naturalization Service (INS)2

commenced removal proceedings against Lin, charging her with being

1
The Snakeheads are a Chinese smuggling group.
2
The Homeland Security Act of 2002 dissolved the INS and
transferred its functions to the Department of Homeland Security
(DHS). The INS functions relevant to this case, including the
adjudication of asylum claims, now reside in the DHS Bureau of
Citizenship and Immigration Services ("BCIS"). See Disu v.
Ashcroft, 338 F.3d 13, 16 n.3 (1st Cir. 2003). We nonetheless
refer to the INS, rather than the BCIS, for the sake of
consistency.

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present in the United States without being admitted or paroled by

an immigration officer.

Lin testified before an Immigration Judge (IJ) at a

removal hearing. Conceding removability, Lin requested relief in

the form of asylum, withholding of removal, protection under the

CAT, and, in the event removal was necessary, voluntary departure.

Lin was the only witness to testify; notably, Lin's husband Zheng,

who was living with Lin at the time of the hearing, did not testify

on her behalf.3 Lin's testimony recounted the following events.

Lin and Zheng were unofficially married in Changle City,

China on April 12, 1992. At the time, both Lin and Zheng were

nineteen years old, which Lin testified is below the required age

for marriage in China; in order to get married, a woman must be

twenty-two and a man must be twenty-three. On June 21, 1993, Lin

gave birth to her first child, a boy named Zhang Jai, in a small

hospital in the countryside. Knowing that she was too young to

receive a permit to have a child, Lin had avoided the major

hospitals where Chinese officials would be more likely to note the

birth and did not register the child with the authorities.

Lin testified that despite her efforts to escape

detection, she learned soon after Zhang Jai's birth that government

officials were looking for her so that they could sterilize her.

3
Zheng filed his own application for asylum. The record
provides no information about the present status of that
application.

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She and Zheng, along with their newborn son, moved from Zheng's

family's house to Lin's mother's house in September 1993, where

they believed Chinese officials would be less likely to find them.

By March 1994, Lin was again pregnant. Lin testified that members

of Zheng's village learned of her second pregnancy in April or May

and told Zheng that he should turn in Lin so that she could be

sterilized. The village officials threatened to sterilize Zheng

should he refuse to turn over his wife. It was this threat, said

Lin, that led Zheng to emigrate from China to the United States in

May 1994. Lin, still living at her mother's house, stayed behind

in China to look after her son.

Lin testified that in mid-July 1994, several months after

Zheng had left for America, six people broke into her mother's

house and dragged Lin to the hospital, where her pregnancy was

forcibly aborted. Although these people -- apparently government

officials from Zheng's hometown -- initially told the doctor to

sterilize Lin, Lin's mother, who had also come to the hospital,

convinced them not to perform the sterilization procedure. Lin

said that her mother had pleaded with the officials that Lin might

have children not in China, but in the United States.

According to Lin's testimony, these officials continued

to harass her even after the forced termination of her pregnancy.

They threatened to fine her about $6,000 and to sterilize her. Lin

said that she fears that these officials will continue to harass

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her and will have her sterilized if she returns to China. At the

conclusion of her direct testimony, Lin entered in evidence a

hospital document in which her 1994 abortion was recorded. She

also submitted a picture of herself and her son, who is apparently

still living in China.

At the conclusion of Lin's testimony, the IJ asked Lin

whether, as her testimony had indicated, government officials had

learned of her second pregnancy when she was only one month

pregnant. Lin responded "[n]o, the government discover I was

pregnant, it is from March, April, May, June, July, that is four

months." During cross-examination, Lin testified that Zheng lived

with her at her mother's house after he was threatened with

sterilization and before he left for America. But she then changed

her story when confronted with an earlier sworn statement in her

asylum application that Zheng moved in with his sister after he was

threatened with sterilization. Finally, during cross-examination,

Lin revised her earlier testimony about why she had not been

sterilized when her pregnancy was forcibly aborted: Lin's mother

had convinced the officials not to sterilize Lin by explaining that

Lin could not get pregnant again because Zheng was in America.

After hearing Lin's testimony and considering her

submissions in evidence, the IJ delivered an oral opinion which

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denied all forms of relief sought by Lin.4 The IJ first found that

Lin was statutorily ineligible for voluntary departure because she

had no travel documents enabling her to enter China.5 The IJ then

decided against Lin on her claims for asylum, withholding of

removal, and relief under the CAT, concluding that Lin was "not a

credible witness and . . . perjured herself under oath." After

noting the conspicuous absence from the proceedings of Lin's

husband, who lived only a ten-minute walk away, the IJ explained

that Lin's testimony was, at times, inherently implausible and

frequently self-contradictory.

Lin appealed the IJ's decision to the BIA, which

summarily affirmed without decision. See 8 C.F.R. § 1003.1 (a)(7)

(2003).

II.

Lin makes two arguments in her petition for review.

First, she says that the IJ's credibility determinations were not

supported by substantial evidence. Second, she argues that her

asylum application really had two different claims, but the IJ

ruled on only one. Lin says that she argued to the IJ and to the

4
The IJ did find that Lin's application for asylum was timely
because it was filed within one year of her entry into the United
States. The INS had initially found that Lin's application was not
timely. This issue is not before us on appeal.
5
Petitioner has, on appeal, waived any challenge to this
denial of voluntary departure by not addressing the issue in her
brief. See Mediouni v. INS, 314 F.3d 24, 28 n.5 (1st Cir. 2002).

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BIA that she met the criteria for asylum for two independent

reasons: first, that she has been persecuted and has a well-founded

fear of future persecution because she and her husband were

underage when they were married and had their first child; and

second, that she was persecuted by being forced to have an abortion

of her second child. Lin says the IJ ruled against her on the

second claim but did not address the first, so she is entitled to

a remand on that issue.

These asylum claims, if true, are serious. See Zhao v.

U.S. Dep't of Justice, 265 F.3d 83, 92 (2d Cir. 2001) (discussing

Congress's findings concerning forced abortion and sterilization in

China). But we conclude after our own review that Lin did not

present these as two separate claims, but rather as one seamless

argument in support of asylum, which explains the IJ's failure to

focus on the first as an independent ground. More importantly, we

conclude that the IJ's adverse credibility findings, which are

supported by the record, doom the first claim, even assuming it had

been clearly presented as an independent claim. As a result, we

affirm.

The BIA's denial of Lin's asylum claims, absent legal

error, "must be upheld if supported by reasonable, substantial, and

probative evidence on the record considered as a whole." INS v.

Elias-Zacarias, 502 U.S. 478, 481 (1992) (internal quotation marks

omitted); Albathani v. INS, 318 F.3d 365, 372 (1st Cir. 2003). To

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reverse the BIA, we must be persuaded that "the evidence not only

supports that conclusion, but compels it." Elias-Zacarias, 502

U.S. at 481 n.1 (emphasis in original); Albathani, 318 F.3d at 372.

In the case of an adverse credibility determination, the IJ must

"offer a specific, cogent reason for [her] disbelief." El Moraghy

v. Ashcroft, 331 F.3d 195, 205 (1st Cir. 2003) (quoting Gailius v.

INS, 147 F.3d 34, 47 (1st Cir. 1998)). Where, as here, the BIA has

summarily affirmed without opinion under 8 C.F.R. § 1003.1(a)(7),

the findings and conclusions of the IJ are reviewed directly. See

Keo v. Ashcroft, 341 F.3d 57, 60 (1st Cir. 2003); Herbert v.

Ashcroft, 325 F.3d 68, 71 (1st Cir. 2003).

An applicant can qualify as a "refugee," and thus for

consideration for asylum, either "(1) by demonstrating past

persecution, thus creating a presumption of a well-founded fear of

persecution; or (2) by demonstrating a well-founded fear of

persecution." Yatskin v. INS, 255 F.3d 5, 9 (1st Cir. 2001).

Whether past or future, the persecution must be on the basis of

race, religion, nationality, membership in a particular social

group, or political opinion. El Moraghy, 331 F.3d at 203. Lin's

asylum claim is based on the 1996 IRRIRA6 amendment to the

definition of "refugee":

6
The full name of the act is the Illegal Immigration Reform
and Immigrant Responsibility Act, Pub. L. No. 104-208, 110 Stat.
3009-546 (1996).

-8-
 For purposes of determinations under this chapter, a
person who has been forced to abort a pregnancy or to
undergo involuntary sterilization, or who has been
persecuted for failure or refusal to undergo such a
procedure or for other resistance to a coercive
population control program, shall be deemed to have been
persecuted on account of political opinion, and a person
who has a well founded fear that he or she will be forced
to undergo such a procedure or subject to persecution for
such failure, refusal, or resistance shall be deemed to
have a well founded fear of persecution on account of
political opinion.

8 U.S.C. § 1101(a)(42).

The IJ's conclusion that Lin fabricated her story about

the forced abortion was supported by substantial evidence and was

justified with specific reasoning. It was within the IJ's

discretion to conclude that Lin's account of this incident was

highly implausible and riddled with contradictions. Cf.

Aguilar-Solis v. INS, 168 F.3d 565, 571 (1st Cir. 1999) ("[W]hen a

hearing officer who saw and heard a witness makes an adverse

credibility determination and supports it with specific findings,

an appellate court ordinarily should accord it significant

respect.").

Lin first testified that she became pregnant in March

1994 and that government officials started harassing Zheng about

the pregnancy in April. It was reasonable for the IJ to conclude

that Chinese officials would not have discovered that Lin was

pregnant within the first month of her pregnancy; this is

especially true since Lin failed to clarify her testimony when the

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IJ directly questioned her on it.7 Lin also provided contradictory

testimony about how her mother was able to convince the Chinese

officials not to sterilize Lin after the doctors had already

performed the abortion. Lin first said that her mother explained

that Lin might have a child in America, but then testified that her

mother actually said that Zheng was in America and so Lin could not

get pregnant. At another point in her testimony, Lin said that

Zheng lived with her after he was threatened with sterilization,

but then later testified that Zheng was actually living with his

sister.

The IJ also noted that the 1998 Profile of Asylum Claims

for China indicates that the Fujian Province, from which Lin and

her husband hailed, "apparently has been relatively liberal in

implementing restrictive family planning policies." Moreover, the

profile said that it is not standard practice to issue abortion

certificates and that documentation purporting to certify abortions

is subject to widespread fabrication and fraud. This profile,

considered in light of Lin's inconsistent and implausible

testimony, was sufficient to support the IJ's conclusion that the

7
Lin tried to explain the discrepancy in her testimony by
saying that there were four months between when she became pregnant
in March and when government officials aborted her pregnancy in
July. This explanation was not responsive to the IJ's point, which
was that she testified Zheng was told to produce Lin for an
abortion in April.

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abortion certificate provided by Lin was fake and had been provided

by a smuggler.

We turn to Lin's other argument that regardless of

whether she fabricated the forced-abortion story, she was still

entitled to asylum. Lin's argument is that the uncontroverted

evidence, taken by itself, established both that she was previously

persecuted and that she has a well-founded fear of future

persecution. She says that she was persecuted in China based

solely on her underage marriage and birth. She buttresses this

point by noting that she has had a second child while in America

and pointing out that, according to the Profile of Asylum Claims

relied upon by the IJ, "a person who conceived a second child

without approval while on a student or visitor visa would be

subject to the same penalties that a resident of China must bear."

Lin argues that neither the IJ nor the BIA ever addressed this

argument in rejecting her claims for relief.

Lin's argument is unpersuasive. The IJ's determination

(which was supported by substantial evidence) that Lin fabricated

the major incident upon which she was seeking asylum supported the

IJ's secondary conclusion that Lin was simply "not a credible

witness" and had therefore not met her burden on her asylum claim.

It is "simply common sense" that the presence of false testimony

and documents "'submitted to prove a central element of the claim

in an asylum adjudication indicates [the applicant's] lack of

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credibility . . . [and] in the absence of an explanation regarding

such presentation, creates serious doubts regarding the

[petitioner's] overall credibility.'" Yongo v. INS, 355 F.3d 27,

33 (1st Cir. 2004) (quoting In re O-D-, 21 I. & N. Dec. 1079, 1083

(BIA 1998)). Here, the IJ was entitled to, and did, disbelieve not

only Lin's forced-abortion claim, but many of her related

assertions that she had been persecuted and would likely face

similar persecution should she return to China.

We do not rest, though, on this proposition. Even

accepting Lin's testimony that she attempted to escape the

attention of the authorities after the birth of her first child by

giving birth in a small hospital half an hour away and by not

registering him, that is not enough. The IJ was entitled to, and

did, find not credible Lin's stories about the roving birth control

cadres. This finding not only undermined Lin's claim about her

forced abortion, it also undermined any claim relating solely to

her underage marriage and birth.8 The IJ's findings regarding the

relatively liberal policies of the Fujian Province also undermine

the claim. Further, Lin's testimony that she was harassed

independently of the abortion by being ordered to pay a fine after

8
The IJ found that Lin's testimony about when she was living
with her family and when she was living with Zheng's family was
self-contradictory and inconsistent with her asylum application.
Most of this testimony referred to events prior to when Lin said
she was pregnant for the second time. These inconsistencies also
undermine Lin's claim regarding the persecution she experienced on
the sole basis of her underage marriage and birth.

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the birth of her child was also found not credible by the IJ; Lin

failed to mention such a fine in her asylum application. The

record indicates that the IJ implicitly rejected Lin's first claim

and had adequate reason to do so.

III.

For the same reasons, the IJ's refusal to grant

withholding of removal was within her discretion. See Mediouni v.

INS, 314 F.3d 24, 27 (1st Cir. 2002) ("Because the standard for

withholding deportation is more stringent than that for asylum, a

petitioner unable to satisfy the asylum standard fails, a fortiori,

to satisfy the former." (internal quotation marks omitted)).

Similarly, the IJ's denial of relief under the CAT is amply

supported by the record. See Guzman v. INS, 327 F.3d 11, 16 (1st

Cir. 2003) (burden is on petitioner under the CAT to establish that

torture is more likely than not upon removal).

IV.

The judgment of the BIA denying Lin's applications for

asylum, withholding of removal, and protection under the CAT is

affirmed.

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