Lin v. Attorney General of U.S.

• Decision Date: 11 September 2008
• Docket Number: No. 06-2883.,06-2883.
• Citation: 543 F.3d 114
• Parties: Bin LIN, Petitioner v. ATTORNEY GENERAL OF the UNITED STATES, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

543 F.3d 114

Bin LIN, Petitioner v. ATTORNEY GENERAL OF the UNITED STATES, Respondent.

No. 06-2883.

United States Court of Appeals, Third Circuit.

Argued March 14, 2008.

Filed: September 11, 2008.

Thomas V. Massucci, (Argued), New York, NY, Counsel for Petitioner.

Edward J. Duffy, (Argued), Alison M. Igoe, Peter D. Keisler, Office of Immigration Litigation Civil Division, U.S. Department of Justice, Washington, D.C., Counsel for Respondent.

Before: FUENTES, CHAGARES, and VAN ANTWERPEN, Circuit Judges.

OPINION OF THE COURT

CHAGARES, Circuit Judge.

Bin Lin (Bin) petitions for review of a final order of removal issued by the Board of Immigration Appeals (BIA). After unlawfully entering the country and being placed in removal proceedings, Bin applied for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). He grounded these claims on his alleged arrests and abuse in China for engaging in a spiritual-meditative practice called Falun Gong. Following a hearing, an Immigration Judge (IJ) denied Bin's claims for two reasons: first, that Bin's testimony in support of his claims was not credible, and second, that even if the testimony were credible, it failed to meet the burdens of proof necessary for the requested forms of relief. Bin then appealed to the BIA. The Government contends that Bin failed to contest the IJ's credibility determination in his appeal to the BIA, and that we are therefore without jurisdiction to consider Bin's petition to this Court.

We agree that Bin failed to raise the adverse credibility finding in his appeal to the BIA. We hold, however, that because the BIA nonetheless considered the adverse credibility determination, the issue was sufficiently exhausted to provide us with jurisdiction to review it. Exercising this jurisdiction, we find that substantial evidence supports the credibility determination, and accordingly, we will deny the petition for review.

I.

Bin is a 23-year-old native and citizen of the People's Republic of China. On October 1, 2004, Bin arrived in the United States through Mexico. When approached by Border Patrol agents, he stated that he entered the country to find work.¹ He was subsequently placed in removal proceedings, where he admitted the factual allegations against him and conceded his removability. Thereafter, Bin submitted his application for asylum, withholding of removal, and protection under the CAT.²

At a February 24, 2005 hearing before the IJ, Bin testified on his own behalf. He explained that he began practicing Falun Gong³ in 1998, when he was in the fifth grade, because he suffered from inflammatory diseases of the stomach and intestine and that neither "Western trained" medical doctors nor "Chinese herbal doctors" were able to alleviate his symptoms. A.R. 75. As a result, Bin began to practice Falun Gong when his mother's friend convinced him that it would help his illnesses. No one else in his family practiced, so Bin bought some books and a video on Falun Gong. On direct examination, Bin testified that he practiced with other Falun Gong practitioners at a nearby park "once or twice," though the IJ found that Bin contradicted himself on cross-examination.

A.R. 77.⁴

Bin claimed that he was arrested twice for practicing Falun Gong, first in August 1999 and again in January 2004. He testified that the first time, five or six police officers came to his house, took him by force, and did not give a reason for his arrest. According to Bin, the officers interrogated and beat him badly, but he could not recall the substance of their questioning. Bin stated that two days later, he was sent to a detention center in Qwan Do, China, where he was detained for more than two months. Bin testified that many other inmates were detained there because they also practiced Falun Gong. He stated that he was beaten by the authorities—hit and kicked in the leg and beaten with a club. Bin claimed that he was eventually released, two months later, after he signed a document stating that he would never practice Falun Gong again.

According to Bin, he was arrested again in January 2004 and accused of practicing Falun Gong. The authorities detained him for one month and did not allow his mother to visit him. He claimed that he was beaten once while detained, and that he suffered bruises. He alleged that his mother was also interrogated after his detention. He was released on January 15, 2004, and departed China in September 2004.

On March 3, 2005, the IJ denied Bin's applications for asylum, withholding of removal, and CAT protection and ordered him removed. The IJ denied asylum for two distinct reasons. First, even assuming Bin's testimony was truthful, the evidence did not support a finding of past persecution or a well-founded fear of persecution as is required to prevail on an asylum claim. Second, the IJ found Bin not credible due to material inconsistencies within his testimony and between his testimony and his written affidavit. Specifically, the IJ determined that while Bin's affidavit stated that the police told Bin the reason for his first arrest, he testified before the IJ that the police gave no reason for the arrest. In addition, the IJ determined that Bin testified inconsistently about where, and with whom, he practiced Falun Gong after his first arrest. The IJ also found that Bin did not meet the more exacting standard for withholding of removal or the standard for relief under the CAT.

On March 7, 2005, Bin, through his prior counsel, filed a notice of appeal with the BIA. The notice of appeal did not assert which issues Bin was appealing but instead stated that he would file a separate brief. In the separate brief, Bin listed the following arguments:

I. THE IJ ERRED IN FINDING THAT [BIN]'S ARRESTS AND DETENTION IN 1999 AND 2004 DID NOT CONSTITUTE PERSECUTION WITHIN THE MEANING OF THE IMMIGRATION AND NATIONALITY ACT ("INA"); RESPONDENT CLEARLY SUFFERED PERSECUTION AT THE HANDS OF THE CHINESE GOVERNMENT, AND THUS, IS CLEARLY ELIGIBLE FOR ASYLUM.

II. THE IJ ERRED IN FINDING THAT [BIN]'S TWO DETENTIONS DO NOT RISE TO THE LEVEL OF PERSECUTION; [BIN] SUFFERED SIGNIFICANT DEPRIVATION OF FREEDOM AND LIBERTY ON ACCOUNT OF HIS BEING A FALUN GONG PRACTITIONER.

A.R. 12, 13.

On May 4, 2006, the BIA "adopt[ed] and affirm[ed] the decision of the [IJ] to the extent the [IJ] concluded [Bin] was not credible and did not therefore meet the burden of proof for asylum, withholding of removal and protection under the Convention Against Torture." A.R. 2. The BIA did not address Bin's two allegations of error, having instead adopted the adverse credibility determination.

II.

We generally have jurisdiction to review a final order of removal under section 242(a)(1) of the Immigration and Nationality Act (INA). See 8 U.S.C. § 1252(a)(1); Yan Lan Wu v. Ashcroft, 393 F.3d 418, 421 (3d Cir.2005). Section 242(d)(1) of the INA, however, limits our jurisdiction to cases where a petitioner "has exhausted all administrative remedies available as of right...." 8 U.S.C. § 1252(d)(1); see Abdulrahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir.2003).

Where we do have jurisdiction to entertain a petition for review and "the BIA adopted the IJ's opinion, we treat that opinion as the opinion of the [BIA]." Zhang v. Gonzales, 405 F.3d 150, 155 (3d Cir.2005). Accordingly, we review the IJ's opinion to the extent the BIA relied upon it. Wang v. Att'y Gen., 423 F.3d 260, 267 (3d Cir.2005).

Review of an IJ's decision, including an adverse credibility determination, "is conducted under the substantial evidence standard which requires that administrative findings of fact be upheld `unless any reasonable adjudicator would be compelled to conclude to the contrary.'" Chen v. Gonzales, 434 F.3d 212, 216 (3d Cir. 2005) (quoting 8 U.S.C. § 1252(b)(4)(B)). In other words, adverse credibility determinations are afforded deference provided the IJ "suppl[ies] specific, cogent reasons why the applicant is not credible." Chukwu v. Att'y Gen., 484 F.3d 185, 189 (3d Cir.2007); Gao v. Ashcroft, 299 F.3d 266, 276 (3d Cir.2002). Under the law applicable to Bin's petition, the inconsistencies identified by the IJ must not be "minor" and must go to the heart of the petitioner's claim. Gabuniya v. Att'y Gen., 463 F.3d 316, 322 (3d Cir.2006).⁵

III.

The Government argues that Bin did not raise the issue of the IJ's credibility determination to the BIA, thereby failing to exhaust his administrative remedies, and thus depriving us of jurisdiction under § 1252(d)(1). Bin counters that we have jurisdiction to consider the credibility determination because he did raise the issue before the BIA, thereby exhausting his administrative remedies. In the alternative, Bin argues that even if he did not raise the credibility determination, the BIA's sua sponte consideration of the issue provides us with jurisdiction. For the reasons discussed below, we conclude that Bin did not raise the IJ's adverse credibility finding to the BIA, but because the BIA considered the credibility issue sua sponte, we nonetheless have jurisdiction to review it.

A.

As stated earlier, under § 1252(d)(1), "a court may review a final order of removal only if [] the alien has exhausted all administrative remedies available to the alien as of right...." 8 U.S.C. § 1252(d)(1). The parties dispute what Congress meant by the term "administrative remedies." While our jurisprudence has been less than clear as to whether the statute requires exhaustion of administrative procedures, claims, or issues, compare Khan v. Att'y Gen., 448 F.3d 226, 236 n. 8 (3d Cir.2006), with Zheng v. Gonzales, 417 F.3d 379, 383 (3d Cir.2005), we are bound by those opinions that have interpreted issue exhaustion as a statutory requirement. See, e.g., Kibinda v. Att'y Gen., 477 F.3d 113, 120 n. 8 (3d Cir.2007) (finding petitioner's unraised issue unexhausted and thus precluded by § 1252(d)(1)'s "statutory [exhaustion] requirement"); Abdu...