Lin v. Gonzales

• Decision Date: 14 September 2007
• Docket Number: No. 06-2155.,06-2155.
• Citation: 503 F.3d 4
• Parties: Yue Yun LIN, Petitioner, v. Alberto R. GONZALES, United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

503 F.3d 4

Yue Yun LIN, Petitioner, v. Alberto R. GONZALES, United States Attorney General, Respondent.

No. 06-2155.

United States Court of Appeals, First Circuit.

Submitted April 6, 2007.

Decided September 14, 2007.

Farah Loftus on brief, for petitioner.

Peter D. Keisler, Assistant Attorney General, Civil Division, with whom Christopher C. Fuller, Senior Litigation Counsel, and Ari Nazarov, Trial Attorney, Office of Immigration Litigation,

Civil Division, were on brief, for respondent.

Before TORRUELLA and LIPEZ, Circuit Judges, and TASHIMA,^* Senior Circuit Judge.

TASHIMA, Senior Circuit Judge.

Yue Yun Lin, a native and citizen of China, petitions for review of a Board of Immigration Appeals ("BIA") decision affirming an immigration judge's ("IJ") denial of Lin's application for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). Lin claims that she was targeted by Chinese authorities on account of her opposition to China's coercive birth control policies, and would face future persecution if she were removed to China. We conclude that substantial evidence supports the BIA's determination that Lin lacked credibility, and therefore we deny Lin's petition for review.

I. Background

Lin was born in China in 1975, and first entered the United States in November 2000. In December 2000, Lin was served with a Notice to Appear, charging her with removability. In November 2001, Lin applied for asylum, withholding of removal and CAT protection.

In her asylum application, Lin described several run-ins with Chinese family planning officials. First, she said that in March 1999 she was falsely accused by family planning officials of living with her boyfriend without being married. According to Lin, she actually lived with her parents at that time. The officials beat Lin's boyfriend and forced Lin to submit to a gynecological exam to check for pregnancy.

Next, in May 1999, the family planning officials in Lin's village began seeking Lin's brother, because he and his wife had a second child in violation of government policy. Officials visited Lin's home three times to question Lin and her parents regarding Lin's brother, in May, June, and July 1999. Lin stated that at the July visit, the officials insisted that her parents pay a 30,000 yuan RMB fine because of their refusal to divulge the whereabouts of Lin's brother's family. As Lin's parents could not afford to pay the fine, the officials decided to arrest the parents. When Lin protested, a struggle ensued. An official struck Lin, then kicked her when she fell to the ground. Lin's parents were held by the authorities for several months.

In reaction to this second incident, Lin said that she decided to protest the officials' acts. Because Lin was not highly literate, she asked someone else to write a statement for her describing what had happened to her family and criticizing the family planning officials. Lin posted the statement around the village, and sent a copy to the local court. Lin was subsequently told that the family planning officials, upset by her public protest, wanted to arrest her. To avoid arrest, Lin left the village and eventually settled in Xiamen, taking a job in a clothing factory there.

Lin described a final encounter with the authorities that occurred in Xiamen later that fall. Lin, however, gave two differing versions of the incident in her asylum application and her later testimony in a hearing before the IJ. In Lin's asylum application, she stated that in November 1999, police conducted a check for ID cards among the workers at Lin's factory. Fearing arrest because she was not a resident of Xiamen and thus not legally permitted to work in Xiamen, Lin attempted to flee from the police. During the chase, Lin said that she fell into a deep gully and was knocked unconscious. She woke in a hospital, with severe injuries to her left arm and her face. During the next year, Lin stayed with friends in order to avoid arrest. Eventually, she met an alien smuggler who helped her make her way to the United States by way of Vietnam and Japan.

In her oral testimony before the IJ, speaking through a translator, Lin described the incident in Xiamen that led to her injuries differently. She testified that one day she went out to the grocery store and encountered family planning officials from her home village who were there searching for her to arrest her. She fled into the mountains, and fell, which caused the injuries to her arm and face. Lin's oral description of the events that followed, including her recovery and travel to the United States, remained essentially the same as that given in her asylum application.

After receiving Lin's testimony over the course of several hearings,¹ the IJ rejected Lin's application for asylum, withholding of removal, and CAT protection. In a written decision filed in February 2005, the IJ stated that Lin's testimony was not credible, based on discrepancies and vagueness in Lin's account of her experiences.

Specifically, the IJ cited six inconsistencies in Lin's written asylum application and her oral testimony. These discrepancies included: (1) that Lin gave inconsistent dates for her employment in Xiamen; (2) that Lin told two quite distinct versions of the chase by government officials in Xiamen in the application and in her testimony; (3) that Lin listed eight total years of education on her application, but stated at the hearing that she had only five years of schooling; (4) that Lin failed to mention at the hearing that she had traveled through Vietnam and Japan en route to the United States, though her application included this information; (5) that Lin misrepresented her place of residence at an earlier hearing before an IJ in New York; and (6) that Lin gave differing accounts of the family planning officials' three visits to her parents' home in search of her brother.

Based on Lin's lack of credibility, the IJ found that Lin had not established her eligibility for asylum. The IJ also concluded that, even if Lin were found credible, Lin had not demonstrated a well-founded fear of future persecution, as she had remained in a state-run hospital for a month following the chase by government officials without incident, and suffered no further problems before she left China a year later. Moreover, Lin's parents and the family of her brother all continued to live in China peaceably. Given that Lin had failed to show her eligibility for asylum, the IJ found that Lin had also failed to show eligibility for withholding of removal or CAT protection.

In a per curiam order, the BIA adopted and affirmed the IJ's decision. The BIA stated that "the discrepancies noted by the Immigration Judge are material and relevant to [Lin's] persecution claim and the Immigration Judge's adverse credibility finding is supported by the record before us." As a result, the BIA concluded that Lin had failed to satisfy her burden of proof as to her claims, and her appeal was dismissed.

II. Standard of Review

Where, as here, "the BIA adopted and affirmed the IJ's ruling, but also discussed some of the bases for the IJ's opinion, we review both the IJ's and BIA's opinions." Zheng v. Gonzales, 475 F.3d 30, 33 (1st Cir.2007). We review the agency's factual findings, including credibility determinations, under the substantial evidence standard, and may...