Lin v. Gonzales, Docket No. 03-40720.

CourtU.S. Court of Appeals — Second Circuit
Writing for the CourtJacobs
Citation446 F.3d 395
Docket NumberDocket No. 03-40720.
Decision Date27 April 2006
PartiesTu LIN, Petitioner, v. Alberto R. GONZALES,<SMALL><SUP>*</SUP></SMALL> Respondent.
446 F.3d 395
Tu LIN, Petitioner,
v.
Alberto R. GONZALES,* Respondent.
Docket No. 03-40720.
United States Court of Appeals, Second Circuit.
Argued: March 16, 2006.
Decided: April 27, 2006.

Page 396

Fengling Liu, New York, NY, for Petitioner.

Page 397

Ryan M. Archer, Special Assistant United States Attorney (Karin J. Immergut, United States Attorney for the District of Oregon, on the brief), Portland, OR, for Respondent.

Before: JACOBS, LEVAL, Circuit Judges, and RAKOFF, District Judge.**

JACOBS, Circuit Judge.


Petitioner Tu Lin ("Lin") appeals from the decision of the Board of Immigration Appeals ("BIA") affirming without opinion the order of Immigration Judge William F. Jankun ("IJ"), which (i) denied Lin's application for asylum under the Immigration and Nationality Act ("INA") and his applications for withholding of removal under the INA and the Convention Against Torture and (ii) ordered his removal to the People's Republic of China ("China"). Lin argues that the IJ's adverse credibility finding was unsupported by substantial evidence because it rested on grounds that were either immaterial or factually erroneous. The IJ did erroneously characterize certain portions of Lin's testimony as inconsistent; but we deny the petition because (i) the demeanor evidence and the discrepancies on which the IJ appropriately relied — when considered together — provide substantial evidence for the adverse credibility finding, and (ii) we are confident that the IJ would adhere to his decision, even absent his problematic findings.

I

Tu Lin, a native of the Fujian province of China with a wife and two sons still living in China, entered the United States in April 2001 — illegally and alone — seeking admission. Conceding removability, Lin filed his applications for asylum ("application") and withholding of removal in October 2001, and he appeared in May 2002 before an IJ for a hearing on these applications.

Lin's application and hearing testimony, taken together, give the following narrative. Lin was married and had his first son in 1988; soon after, his wife suffered the insertion of an intrauterine device ("IUD") by Chinese family planning authorities. When the couple discovered that their son had congenital heart disease, they applied to Chinese authorities for permission to have a second child. The application was denied, but they decided to have the child in secret. When Lin's wife became pregnant in April 1990, Lin moved his family to Hunan; however, when Lin's wife was eight months pregnant, she returned to their home village in Fujian to obtain better medical care. Back home, Lin's wife hid from family planning authorities; but her second child was discovered within a month after birth. Family planning authorities wanted to sterilize Lin's wife, but because she was not physically able to undergo the procedure, they inserted an IUD and informed her that Lin would be sterilized instead.

Lin heard this news, and decided to remain in Hunan. In an effort to force him to submit to sterilization, family planning officials harassed his family, confiscating some of their appliances and damaging their home. Lin's wife fled from the damaged home to join Lin in Hunan, but authorities continued their harassment of Lin's family, including by detaining his mother for several days.

Lin's wife remained with Lin in Hunan into 1993, when her IUD fell out and she became pregnant with their third child.

Page 398

Lin's wife's family in Fujian, unaware of her pregnancy, insisted that she return there to attend her brother's wedding; she made the trip in the sixth or seventh month of her pregnancy. While Lin's wife was home for the wedding, authorities discovered the pregnancy and performed a forced abortion on her, although her continuing health problems prevented sterilization.

Fearing intensification of the authorities' efforts to arrest him, Lin fled in 1994 from Hunan to the Guangxi Autonomous Region. He hid there until he left for the United States in 2001.

II

At the conclusion of the May 2002 hearing, the IJ issued an oral opinion denying asylum and withholding of removal. The IJ's decision rested on an adverse credibility finding which, in turn, was based primarily on (i) numerous minor discrepancies between Lin's application and his testimony, and within his testimony itself; (ii) an inconsistency between the 1998 State Department Country Profile of China and Lin's testimony; and (iii) Lin's demeanor. The BIA affirmed the IJ's order without opinion.

III

When the BIA affirms without opinion, we review the IJ's decision as the final agency determination. See Twum v. INS, 411 F.3d 54, 58 (2d Cir.2005). We review the IJ's factual findings under the substantial evidence standard, which is met "unless any reasonable adjudicator would be compelled to conclude to the contrary," § 1252(b)(4)(B); see Ramsameachire v. Ashcroft, 357 F.3d 169, 177 (2d Cir.2004); see also Cao He Lin v. DOJ, 428 F.3d 391, 401 (2d Cir.2005); Zhou Yun Zhang v. INS, 386 F.3d 66, 73 (2d Cir.2004).

We typically afford "particular deference" to an IJ's credibility finding, "mindful that the law must entrust some official with responsibility to hear an applicant's asylum claim, and the IJ has the unique advantage among all officials involved in the process of having heard directly from the applicant." Zhang, 386 F.3d at 73 (internal quotation marks omitted). Our review of a credibility finding is essentially to ensure that it is "based upon neither a misstatement of the facts in the record nor bald speculation or caprice." Id. at 74; see also Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003) (explaining that an adverse credibility finding must be based on "specific, cogent reasons" that "bear a legitimate nexus" to the applicant's credibility) (internal quotation marks omitted).

The IJ relied on three main grounds that we hold are together sufficient to support the adverse credibility finding:

(1) The IJ highlighted a number of discrepancies between Lin's application and his testimony and within his testimony itself. As the IJ explained:

Respondent did not mention the incident with his father being slapped or his mother being detained. In addition, the respondent indicated that when his wife returned home for her second pregnancy, she hid at other houses. The respondent has not mentioned that today, but has just indicated that his wife's pregnancy was not discovered until after the baby was born, and the baby was crying. Also the respondent indicated it was more than 10 persons that came to the house to take his wife for the sterilization. Also, the respondent indicated that his house was destroyed when the authorities could not find him. The respondent today has not indicated that his house was destroyed at any time, but

Page 399

only that a door and a window were taken. The respondent also indicated that after this, his wife brought their two sons to a reunion with him in Hunan. As the Court has indicated above, the respondent indicated his older son never left their home village because of his medical condition, and in fact, that had been his testimony. The respondent has not given any explanation as to why he states in his application that his two sons traveled with his wife to Hunan Province.

Also, the respondent indicated in his application that his two sons traveled with his wife back for her brother's marriage ceremony. Although as the Court has noted above, at one point today, the respondent indicated that one son traveled with her, and at another point, indicated that no family members traveled with her back for the marriage.

The record supports most of the omissions and inconsistencies relied on by the IJ.

Lin testified that after the birth of his second child, police officers "slapped" and "pushed" his father and detained his mother for several days. He failed to mention these incidents in his application.

Moreover, Lin's application and testimony differ, and his testimony itself is inconsistent, as to the number of his...

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160 practice notes
  • Xiao Xing Ni v. Gonzales, Docket No. 04-0042-AG.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • July 12, 2007
    ...and Labor, U.S. Dep't of State, China: Profile of Asylum Claims and Country Conditions 24 (Apr. 14, 1998); see also Tu Lin v. Gonzales, 446 F.3d 395, 400 (2d The adverse credibility finding undermines the only record evidence of Ni's alleged past persecution or risk of future persecution. A......
  • Dankam v. Gonzales, No. 06-1277.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • July 16, 2007
    ...add to and create a cumulative effect that is sufficient to support a finding that Dankam's claims are not credible. See Lin v. Gonzales, 446 F.3d 395, 402 (2d Cir.2006) ("[E]ven where an IJ relies on discrepancies . . . that, if taken separately, concern matters collateral or ancillary to ......
  • Alrefae v. Chertoff, Docket No. 05-3253-AG.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • December 14, 2006
    ...the BIA affirms an IJ's decision without opinion, we review the decision of the IJ as the final agency determination. Tu Lin v. Gonzales, 446 F.3d 395, 398 (2d Cir.2006). We review the denial of a motion to reopen for abuse of discretion, which may be found if the decision "provides no rati......
  • Gao v. Sessions, Docket Nos. 16-2262-ag
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • May 25, 2018
    ...to the claim, the cumulative effect may nevertheless be deemed consequential." Xiu Xia Lin , 534 F.3d at 167 (quoting Tu Lin v. Gonzales , 446 F.3d 395, 402 (2d Cir. 2006) ). To resolve the instant appeals, we first clarify the following principles that govern credibility determinations bas......
  • Request a trial to view additional results
160 cases
  • Xiao Xing Ni v. Gonzales, Docket No. 04-0042-AG.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • July 12, 2007
    ...and Labor, U.S. Dep't of State, China: Profile of Asylum Claims and Country Conditions 24 (Apr. 14, 1998); see also Tu Lin v. Gonzales, 446 F.3d 395, 400 (2d The adverse credibility finding undermines the only record evidence of Ni's alleged past persecution or risk of future persecution. A......
  • Dankam v. Gonzales, No. 06-1277.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • July 16, 2007
    ...add to and create a cumulative effect that is sufficient to support a finding that Dankam's claims are not credible. See Lin v. Gonzales, 446 F.3d 395, 402 (2d Cir.2006) ("[E]ven where an IJ relies on discrepancies . . . that, if taken separately, concern matters collateral or ancillary to ......
  • Alrefae v. Chertoff, Docket No. 05-3253-AG.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • December 14, 2006
    ...the BIA affirms an IJ's decision without opinion, we review the decision of the IJ as the final agency determination. Tu Lin v. Gonzales, 446 F.3d 395, 398 (2d Cir.2006). We review the denial of a motion to reopen for abuse of discretion, which may be found if the decision "provides no rati......
  • Gao v. Sessions, Docket Nos. 16-2262-ag
    • United States
    • U.S. Court of Appeals — Second Circuit
    • May 25, 2018
    ...to the claim, the cumulative effect may nevertheless be deemed consequential." Xiu Xia Lin , 534 F.3d at 167 (quoting Tu Lin v. Gonzales , 446 F.3d 395, 402 (2d Cir. 2006) ). To resolve the instant appeals, we first clarify the following principles that govern credibility determinations bas......
  • Request a trial to view additional results

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