Lin v. Gonzales

• Decision Date: 27 April 2006
• Docket Number: Docket No. 03-40720.
• Citation: 446 F.3d 395
• Parties: Tu LIN, Petitioner, v. Alberto R. GONZALES,<SMALL><SUP>*</SUP></SMALL> Respondent.
• Court: U.S. Court of Appeals — Second Circuit

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.

Fengling Liu, New York, NY, for Petitioner.

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. 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 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 children who traveled with his wife on two separate occasions during the time period when he claims to have been hiding from Chinese authorities. Lin testified categorically that his sickly first child never left Lin's home village in Fujian. However, explaining the circumstances of a trip that Lin claims his wife took from Fujian to reunite with him in hiding in Hunan, Lin stated in his application that after family planning officials "destroyed" his house, his wife brought both their sons to Hunan because their house was uninhabitable. Lin directly contradicted this statement at the hearing, testifying that after the family planning officials "damaged" his house, his wife "went to Hunan to stay with me with the second child." (emphasis added).

In his application, Lin stated that his wife and "our two sons" left Hunan to travel back home to Fujian to attend his wife's brother's wedding. However, when directly asked at the hearing about that trip, Lin stated that his wife "and a second child returned together," and then had the following exchange on cross-examination:

INS: You said that your wife went to a wedding with your younger son?

Lin: Not the second one.

INS: Which one?

Lin: The second one was too old already. It's the third one that one was pregnant with, '93, the one that was aborted.

****

IJ: Sir, did she take any of — did she either of your two sons that were born with her when she went to her, to her brother's wedding?

Lin: Yes.

INS: You told us before she took your second son.

****

Lin: No, the second son was brought from Hunan.

This testimony is somewhat scrambled. The IJ understood Lin to be saying that his wife was not in fact accompanied by his second son, and observed that, at various points in Lin's application and testimony, Lin asserted that his wife was accompanied by none, or by one, or by two children when she traveled from Hunan to the wedding. The IJ's finding was a plausible one, and the inference of...