Xiu Xia Lin v. Mukasey

• Decision Date: 21 July 2008
• Docket Number: Docket No. 07-5211-ag.
• Citation: 534 F.3d 162
• Parties: XIU XIA LIN, Petitioner, v. Michael B. MUKASEY,<SMALL><SUP>1</SUP></SMALL> Attorney General of the United States.
• Court: U.S. Court of Appeals — Second Circuit

534 F.3d 162

XIU XIA LIN, Petitioner, v. Michael B. MUKASEY,¹ Attorney General of the United States.

Docket No. 07-5211-ag.

United States Court of Appeals, Second Circuit.

Argued: June 24, 2008.

Decided: July 21, 2008.

Sheema Chaudhry, Law Offices of Michael Brown, New York, NY, for Petitioner.

Allen W. Hausman, Senior Litigation Counsel (Jeffrey S. Bucholz, Acting Assistant Attorney General, Richard M. Evans, Assistant Director, on the brief), Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.

Before: WINTER, MINER, and CABRANES, Circuit Judges.

PER CURIAM:

This petition requires us to consider the appropriate basis for an adverse credibility determination under the REAL ID Act, Pub L. No. 109-13, 119 Stat. 231 (2005). We write to clarify that the Act, which permits an IJ to base an adverse credibility finding on, inter alia, a lack of consistency "between the applicant's ... written and oral statements[,] ... the [in]consistency of such statements with other evidence of record ... and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant's claim," see 8 U.S.C. § 1158(b)(1)(B)(iii)² (emphasis added), abrogated our holding in Secaida-Rosales v. INS that "[i]nconsistencies of less than substantial importance for which a plausible explanation is offered cannot form the sole basis for an adverse credibility finding ... especially ... when the inconsistencies ... concern rather matters collateral or ancillary to the [applicant's] claim" for relief, 331 F.3d 297, 308 (2d Cir.2003) (internal quotation marks omitted). We conclude that, in evaluating an asylum applicant's credibility, an IJ may rely on omissions and inconsistencies that do not directly relate to the applicant's claim of persecution as long as the totality of the circumstances establish that the applicant is not credible.

BACKGROUND

A. Factual and Procedural History

Xiu Xia Lin, a native and citizen of China, entered the United States in January 2005 without inspection and shortly thereafter was served with a Notice to Appear charging her with being removable. In July 2005, Lin filed an application for asylum, withholding of removal, and relief under the Convention Against Torture, based on persecution she allegedly faced in China on account of her practice of Falun Gong. Lin's claims of persecution rest on two alleged incidents with Chinese officials. She alleges that in June 2000, upon discovering that she had criticized the government's treatment of Falun Gong practitioners, officials at her school beat her and forced her to sign a statement promising that she would discontinue her involvement with Falun Gong. A second incident occurred in July 2004, when she was allegedly detained and physically abused by government officials after they discovered Falun Gong literature in her room at home. According to Lin, her family attempted to rescue her from detention and was able to save her only by bribing a guard. Sometime thereafter, she allegedly left China for the United States. In support of her application, Lin submitted several documents, including (1) a notarial birth certificate issued in February 2005; (2) photos of her practicing Falun Gong; (3) a letter from her father; and (4) a letter from the friend Lin claims introduced her to Falun Gong and who Lin alleges was later persecuted for practicing Falun Gong. Lin also testified in support of her application.

At a March 2005 removal hearing, the Immigration Judge ("IJ") found that Lin was removable as charged. A subsequent hearing was held on December 16, 2005 to determine Lin's eligibility for asylum, withholding of removal, and relief under the Convention Against Torture. At the conclusion of that hearing, the IJ found Lin lacking in credibility and denied her application for asylum. Specifically, the IJ based his adverse credibility determination on certain inconsistencies and omissions between her testimony and her documentary submissions: (1) the absence in both Lin's asylum application and her friend's letter of any indication that Lin's friend was in hiding to avoid persecution associated with the friend's own Falun Gong activities; (2) the omission in both Lin's asylum application and her father's letter of Lin's allegation that she was detained for twelve hours in 2004; (3) the omission in both Lin's asylum application and her father's letter of the purported bribe that her family had paid to secure her release. The IJ also found it implausible that the government would have issued a birth certificate to Lin during the time Lin claimed that the government was looking for her, noting that "this does raise some doubt about the legitimacy of [Lin's] story." On this basis, the IJ gave the birth certificate "reduced weight." On the other hand, the IJ rejected the government's argument that it was implausible that Lin was able to leave Beijing while the government was looking for her, noting that it was "conceivable that someone could leave a country despite the fact that other government officials are looking for the person." Turning to her application for withholding of removal and relief under the Convention Against Torture, the IJ concluded that Lin had failed to establish her eligibility for either form of relief.

Lin filed a timely appeal of the IJ's decision to the Board of Immigration Appeals ("BIA"). In its October 2007 decision, the BIA affirmed the IJ's adverse credibility determination and dismissed Lin's appeal. In re Xiu Xia Lin, No. A 98 718 133 (B.I.A. Oct. 31, 2007), aff'g No. A 98 718 133 (Immig. Ct. N.Y. City Dec. 16, 2005). She then sought review in our Court.

In her petition before our Court, Lin argues that the IJ's adverse credibility determination was flawed because: (1) the "discrepancies [and] omissions" relied upon by the IJ are "minimal"; (2) the IJ improperly relied on omissions in her documentary submissions as compared to her testimony; and (3) the IJ relied upon his own speculation in concluding that it was implausible that the government would have given her a birth certificate. Because Lin filed her asylum application after May 11, 2005, her claim is governed by the amendments made to the Immigration and Nationality Act ("INA") by the passage of the REAL ID Act, Pub.L. No. 109-13, 119 Stat. 231 (2005). See Title I, § 101(a)(3) of the Act, 119 Stat. 231, 303 (amending 8 U.S.C. § 1158); see also Liang Chen v. U.S. Att'y Gen., 454 F.3d 103, 107 n. 2 (2d Cir.2006).

B. The Real ID Act

Prior to the passage of the REAL ID Act, courts of appeals had developed different rules governing the proper basis for an IJ's adverse credibility determination. The law of our circuit provided that when an IJ based an adverse credibility determination on inconsistencies in an asylum applicant's testimony or between the testimony and the documents the applicant submitted, the IJ was required (1) to demonstrate a nexus between inconsistencies in an asylum applicant's testimony and the applicant's claims; and (2) to establish that the inconsistencies were material to the applicant's claims for asylum. See Secaida-Rosales, 331 F.3d at 307-08; Heui Soo Kim v. Gonzales, 458 F.3d 40, 45 (2d Cir.2006) (concluding that an adverse credibility determination was impermissibly based on minor discrepancies); see also Chen Yun Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002) (adopting similar standard); Campos-Sanchez v. INS, 164 F.3d 448, 450 (9th Cir.1999) (same).

In 2005, Congress passed the REAL ID Act, which, inter alia, amended the INA in order to "creat[e] ... a uniform standard for credibility" determinations. See H.R. Rep. 109-72, at 166-67 (2005); see also In re J-Y-C-, 24 I. & N. Dec. 260, 262 (B.I.A. 2007) (relating the legislative history of the amendment). The REAL ID Act freed an IJ from the nexus and materiality requirements by explicitly stating that an IJ may base an adverse credibility determination on any inconsistencies, "inaccuracies or falsehoods ... without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant's claim, or any other relevant factor." 8 U.S.C. § 1158(b)(1)(B)(iii) (emphasis added). Under the standard established by the REAL ID Act, an IJ is required to evaluate inconsistencies in light of the "totality of the circumstances." Id.

DISCUSSION

We review the agency's factual findings, including adverse credibility determinations, under the substantial evidence standard, treating them as "conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B); see also Shu Wen Sun v. BIA, 510 F.3d 377, 379 (2d Cir. 2007). When evaluating credibility determinations for substantial evidence, we afford "particular deference" to the IJ. Zhou Yun Zhang v. INS, 386 F.3d 66, 73 (2d Cir.2004) (internal quotation marks omitted). We must assess whether the IJ has provided "specific, cogent reasons for the adverse credibility finding and whether those reasons bear a legitimate nexus to the finding." Id. at 74 (internal quotation marks omitted). "Where the IJ's adverse credibility finding is based on specific examples ... of inconsistent statements" or "contradictory evidence," a "reviewing court will generally not be able to conclude that a reasonable adjudicator was compelled to find otherwise." Id. (internal quotation marks omitted). When the BIA agrees with an IJ's adverse credibility determination and adopts particular parts of the IJ's reasoning, we review the decisions of both the BIA and the IJ. See, e.g., Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir.2005).

In the instant case, each of three inconsistencies or omissions³ on which the IJ relied in finding Lin not credible were ancillary or collateral to Lin's claims of past persecution. First, because Lin's submissions reveal no inconsistency as to the...