Lin v. Gonzales

• Decision Date: 12 April 2006
• Docket Number: Docket No. 03-4989.
• Citation: 445 F.3d 127
• Parties: Rui Ying LIN, Petitioner, v. Alberto GONZALES, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

445 F.3d 127

Rui Ying LIN, Petitioner, v. Alberto GONZALES, Attorney General, Respondent.

Docket No. 03-4989.

United States Court of Appeals, Second Circuit.

Argued: March 3, 2006.

Decided: April 12, 2006.

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Hanbin Wang, New York, NY, for Petitioner.

John G. Silbermann, Assistant United States Attorney (Christopher J. Christie, United States Attorney for the District of New Jersey, on the brief), Newark, NJ, for Respondent.

Before: WALKER, Chief Judge, CARDAMONE and SOTOMAYOR, Circuit Judges.

SOTOMAYOR, Circuit Judge.

Rui Ying Lin ("Lin") petitions for review of an April 25, 2003 order of the Board of Immigration Appeals ("BIA") summarily affirming a December 27, 2001 order of Immigration Judge Barbara A. Nelson (the "IJ") denying Lin's application for asylum, withholding of removal, and relief under the United Nations Convention Against Torture ("CAT").¹ The primary question presented on this appeal is whether the IJ erred in relying on a false document Lin used to evade persecution in China, but did not submit in support of her asylum claim, to require corroboration of, and to disregard Lin's documentary evidence. We hold that the IJ erred. We grant the petition for review and remand to the BIA because we cannot predict that the IJ would reach the same adverse credibility determination absent the errors that were made.

BACKGROUND

Lin was born in August 1970 in Fujian Province, China. She married Gao Guo Xin in 1989 and registered her marriage with authorities on November 30, 1990. Lin left her homeland in February 2001 and entered the United States on March 13, 2001, at Los Angeles, California. The Immigration and Naturalization Service issued a Notice to Appear in San Pedro, California on March 23, 2001, and Lin subsequently filed an I-589 application for asylum, withholding of removal, and relief under the CAT dated July 10, 2001.

According to Lin's affidavit in support of her application, testimony before the IJ, and documentary evidence submitted at her asylum hearing, Lin gave birth to her first child, a daughter, in July 1990. Shortly thereafter, family planning officials forced her to undergo the insertion of an intrauterine device ("IUD"). The family planning regulation for Fujian Province that Lin submitted in support of her application for asylum provides that members of the "agricultural population" may be granted permission to have a second child if their first child is female. The regulation further provides that, if a couple is granted permission to have a second child, there must be a four-year interval between pregnancies. The State Department Country Report on China for 2000 confirms that couples in rural areas generally are allowed to have a second child if the first is a girl and that in some provinces, once a couple has two children, either the man or the woman must be sterilized. Lin testified that in June 1994, four years after her daughter was born, family planning officials notified Lin that she could remove her IUD and have a second child.

Lin gave birth to her second child, a son, in May 1995. Lin's I-589 indicates that, after the birth, she and her husband knew that one of them would have to be sterilized. Accordingly, when family planning officials came to Lin's house, she and her husband were in hiding at a relative's house. The officials levied a fine of 10,000 Yuan against Lin, apparently because she was not available to be sterilized. Lin's husband then obtained a false male sterilization certificate from a friend who worked at a local hospital. Lin's husband presented the false certificate to family planning officials, who were satisfied and did not further seek to sterilize Lin or her husband. Lin then had a second IUD inserted at a private hospital in July 1995 because she did not want to become pregnant immediately after her husband had given the false sterilization certificate to family planning officials. Lin testified at her asylum hearing that she wants more children because she and her husband are farmers and need more children to support them in their old age.

The IJ denied Lynn's application for asylum, withholding of removal, and relief under the CAT on December 27, 2001. The IJ rested her determination on four findings. First, the IJ concluded that there was a "serious internal inconsistency" in Lin's testimony in that Lin testified both that she was given permission to have a second child and that she was fined 10,000 Yuan after having a second child for violating the family planning policy. The IJ further concluded that "this is a very serious implausibility in her claim that she would claim on one hand that she was fined 10,000 Yuan for violating the family planning policies of China while on the other hand also telling the Court that she had been told that she could in fact have a second child."

Second, the IJ held that Lin "ha[d] failed to corroborate her claim in any meaningful fashion"; the IJ noted that she "ha[d] problems in accepting any of the [petitioner's] documents as being genuine as she has admitted that her husband and she used a falsified sterilization certificate to allegedly comply with the family planning policies of China." The IJ then stated that she "wonder[ed] if it were so easy to get a false sterilization certificate to fool the Chinese government why the [petitioner] and her husband would not be willing and able to obtain other false documents to try and fool the U.S. Government."

Third, the IJ noted that Lin had submitted into evidence neither the false sterilization certificate nor a letter from her husband before stating that "corroboration is essential because of problems with [petitioner's] testimony." The IJ also observed that Lin "was extremely hesitant in answering many questions posed to her."

Finally, the IJ concluded that Lin's claim was "too speculative" because she testified that "she had no present fear of being sterilized if she is returned to China because the authorities believe that her husband was sterilized." The IJ then noted that Lin "would only have fear of being sterilized if she became pregnant again."

The BIA summarily affirmed the decision of the IJ by order dated April 25, 2003. This timely appeal followed.

DISCUSSION

I.

Where, as here, the BIA summarily adopted or affirmed the IJ's decision without opinion, we review the decision of the IJ. See Twum v. INS, 411 F.3d 54, 58 (2d Cir.2005). We review an IJ's factual findings under the substantial evidence standard and overturn them only if any reasonable adjudicator would be compelled to conclude to the contrary. See 8 U.S.C. § 1252(b)(4)(B); Zhou Yun Zhang v. INS, 386 F.3d 66, 73 (2d Cir.2004). Nevertheless, "the fact that the [agency] has relied primarily on credibility grounds in dismissing an asylum application cannot insulate the decision from review." Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir.2004). An adverse credibility determination must be based on "specific, cogent reasons" that "bear a legitimate nexus" to the finding. Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003). Inconsistent testimony need not be fatal, however, if it is "minor and isolated," and the testimony is otherwise "generally consistent, rational, and believable." Diallo v. INS, 232 F.3d 279, 288 (2d Cir.2000). Lack of corroborating evidence may also bear on credibility, but it cannot form the sole basis for an adverse credibility determination. See id. at 287. Finally, although we afford particular deference to an adverse credibility determination, we will vacate that determination if it is based on flawed reasoning, such as speculation or conjecture, or an inappropriately stringent standard. Secaida-Rosales, 331 F.3d at 307, 312.

II.

A.

The IJ found Lin's testimony to be internally inconsistent because Lin claimed both that family planning officials authorized her, in 1994, to have a second child and that officials fined her 10,000 Yuan, after she gave birth to her second child, for violating the family planning policy. The IJ appears to have understood Lin's testimony to mean that (1) Lin was fined for having a second child, but that (2) she had been granted permission to have a second child. The government at oral argument conceded that the IJ misperceived Lin's testimony.

Nothing in Lin's testimony suggests that family planning officials levied a fine against her for violating the family planning policy by having a second child. Instead, Lin testified that the fine was imposed because she and her husband avoided sterilization after giving birth to a second child. Lin testified that, when she had the first IUD inserted in 1990, officials told her that she would be permitted to have a second child, but that she would be sterilized after giving birth to that child. Lin also testified that family planning officials notified her four years after she gave birth to her daughter that she could remove her IUD and have a second child. Moreover, Lin's I-589 indicated that she knew that either she or her husband would have to be sterilized after the second child was born, even though the family was authorized to have a second child. In short, there is nothing inconsistent or implausible in Lin's testimony that she was allowed to have a second child but was fined for avoiding sterilization after giving birth to that child. Lin's testimony is consistent with the family planning regulations of Fujian Province and the State Department Country Report on China. According to the regulations, rural families may be granted permission to have a second child if the first child is female, but they must wait four years after the first child is born to have a second child. The Country Report indicates that, in some provinces, one spouse must be sterilized once a couple has two children. The IJ did not discuss the family planning policy or Lin's testimony as a whole before concluding that Lin's testimony was...