Lin v. Holder

Decision Date22 November 2013
Docket NumberNo. 12–2302.,12–2302.
Citation736 F.3d 343
PartiesQING HUA LIN, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
CourtU.S. Court of Appeals — Fourth Circuit

OPINION TEXT STARTS HERE

ARGUED:Joshua E. Bardavid, Bardavid Law, New York, New York, for Petitioner. Jonathan Aaron Robbins, United States Department of Justice, Washington, D.C., for Respondent. ON BRIEF:Stuart F. Delery, Principal Deputy Assistant Attorney General, Ernesto H. Molina, Jr., Assistant Director, S. Nicole Nardone, Civil Division, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.

Before GREGORY and THACKER, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Petition denied by published opinion. Judge GREGORY wrote the opinion, in which Judge THACKER and Senior Judge HAMILTON joined. Judge THACKER wrote a separate concurring opinion.

GREGORY, Circuit Judge:

Qing Hua Lin petitions this Court for review of an order of the Board of Immigration Appeals (“Board”) dismissing her appeal from the Immigration Judge's (“IJ”) order finding that she was not eligible for asylum, withholding of removal, or deferral of removal under the Convention Against Torture (“CAT”). For the reasons stated below, we deny Lin's petition for review.

I.
A.

Lin is a native citizen of the People's Republic of China (“China”). She illegally entered the United States near Hidalgo, Texas on August 19, 2009. On October 6, 2009, the Department of Homeland Security commenced removal proceedings against Lin by issuing a notice to appear, charging her with removability under § 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(7)(A)(i)(I), as an alien who, at the time of application for admission to the United States, was not in possession of valid entry documents. Lin then sought relief from removal in the form of asylum, withholding of removal, and protection under the CAT. JA 535. Following several hearings, the IJ issued an order and written opinion denying Lin's application and ordering her removed to China. JA 50–65. Lin appealed to the Board, which affirmed the decision of the IJ. Lin then timely appealed to this Court.

The disposition of this case turns primarily on discrepancies between Petitioner's statements at different stages of the asylum process. Accordingly, we detail below the relevant testimony and materials from Lin's interviews, hearings, and written application for asylum.

Border Patrol Interview, August 20, 2009

Lin was interviewed by a Border Patrol Agent immediately upon being apprehended entering the country (the “Border Patrol interview” or “interview”). During the interview, Lin stated that she was not married and that she had one child. JA 233. When asked what her purpose was for entering the United States, she responded [t]o avoid population control regulationsin China.” JA 229. When asked whether she feared persecution if sent back to China, she indicated that she planned to have more children, and that she would be forced to have an abortion or undergo a tubal ligation if she became pregnant again. JA 235. She also stated that she feared she would be unable to get married if she was sterilized. Id. Finally, Lin explained that because she had given birth out of wedlock, which is seen as “anti-cultural” in China, she instructed her son to refer to her as “Auntie.” Id.

Credible Fear Hearing, September 18, 2009

By this time Lin had retained an attorney. JA 572. During the hearing, and in contrast to the Border Patrol interview, Lin stated that she was married to a man named Dehua Jiang, who continued to reside in China with their son. JA 573. Notably, she also stated that she left China because she had been forced to undergo an unwanted abortion on January 24, 2008. JA 574. This fact was not mentioned during Lin's Border Patrol interview. Following the abortion, her husband went into hiding for fear that he would be sterilized and he encouraged Lin to seek refuge in the United States. JA 575.

Asylum Application and Supporting Documents

On April 28, 2010, Lin submitted an application for asylum and a written statement. The statement provided that Lin married Jiang on September 8, 2004. JA 246. In 2005, four months after the birth of her son, family planning officials from the Chinese government forced Lin to have an IUD implanted and submit to regular gynecological checkups. Id. The statement also discussed the 2008 forced abortion. Id.

In support of her asylum application, Lin also submitted several documents: an abortion certificate from the First Hospital of Fuzhou, a notice from Yang Zhong Village committee requesting that Lin appear for an IUD and pregnancy checkup, and a notice from Yang Zhong Village Committee notifying Lin that she had violated the family planning regulations and fining her 10,000 yuan. JA 273–80. Lin also submitted a statement from her mother-in-law, providing that Lin and her son were married in 2004. JA 285. Her mother-in-law described Lin's forced abortion and how family planning officials continue to visit her house on a regular basis looking for Lin and her husband. JA 285. Finally, Lin submitted a statement from her husband. He provided that the two were married in September 2004 and that the marriage was “permitted and blessed.” JA 294. He also recounted the circumstances of Lin's forced abortion and the couple's decision that she seek refuge in the United States. JA 294–95.

State Department Report on China

The government submitted a 2007 report from the United States Department of State on China's population control policies. JA 26–27. The report stated that the policies were no longer strictly enforced and that there have been few reports of forced abortions or sterilizations in Fujian Province over the last twenty years. Id.

First Merits Hearing, August 31, 2010

Lin gave the following testimony in support of her asylum claim before an IJ on August 31, 2010:

Lin married Jiang on September 8, 2004. JA 101. Their only child, a son, was born on March 23, 2005. JA 102. Four months after his birth, family planning officials came to her home and took her to a birth control office to insert an IUD. JA 103–04. Lin was instructed that she would have to attend seasonal checkups to ensure the IUD remained inserted and that she had not become pregnant again. JA 103.

On January 24, 2008, after learning that Lin was pregnant again,1 five family planning officials came to Lin's rented house in Fuzhou City, forced her into a van, and performed an unwanted abortion on her at a local hospital. JA 109–12. After the procedure, she was told that she would have to pay a 10,000 yuan fine, and that if she did not her husband would be arrested and forcibly sterilized. JA 112.

When asked by the IJ whether she was given any documentation regarding the abortion, Lin stated that originally she was not, but a few days after the procedure she returned to the hospital and requested an abortion certificate. JA 113. When asked why she requested the document, she first stated that she wanted to have “proof for the future,” and because she “assumed that America has ... human rights, and I think that certificate will be useful in the future.” JA 114. The IJ then asked her whether she was already planning to come to America, and she stated “not yet ... I just assumed that this certificate would be useful to me in the future.” JA 115. Under further questioning, Lin then changed her answer, stating that she requested the document so she could take a vacation from work. Id. When the IJ noted that Lin was self-employed, she changed her answer once again, stating that she was in fact planning on applying for asylum in the United States at the time she requested the documentation and thought it would be helpful for that purpose. JA 116–117.

Status Conference and Submission of Additional Government Evidence, November 16, 2010

The IJ held a status conference in the matter on November 16, 2010. At the hearing, the government requested that the court consider additional evidence that was part of Lin's file but had not been discovered by the government's attorneys until after the close of evidence. JA 175. The additional evidence consisted of the recorded notes from Lin's September 20, 2009 Border Patrol interview. Id. Over Petitioner's objection, the IJ decided to accept the evidence and hold a second evidentiary hearing so the parties would have an opportunity to address the new evidence. Id.

Second Merits Hearing, January 31, 2011

At the second hearing, Lin was asked why she told the Border Patrol Agent during the interview that she was not married. Lin responded, [i]n our village, our practice is, if you did not have the, you know, banquet, if you did not have the Chinese ceremony, you really [are not] consider[ed] married.” Id. When asked why she responded differently at the credible fear hearing, she said that her attorney had told her in the interim that “in the United States if you are registered at the court ... you are considered as married.” JA 181. In essence, Lin blamed the contradictory testimony on a cultural misunderstanding. Lin conceded, however, that she registered her marriage with the Chinese government in 2004. JA 186.

Lin was also questioned why she did not mention the forced abortion during the Border Patrol interview. In vague and non-responsive answers, she indicated that the Agent conducting the interview told her not to provide details of her claim and that she could tell her full story to a judge later. JA 193–95. She also stated that she did not think there was room on the Agent's form to record detailed answers. JA 193.

B.

On March 1, 2011, the IJ issued a decision denying Lin's applications for asylum, withholding of removal, and protection under the CAT, and ordered her removed to China. JA 50–65. The IJ found Lin not credible “in light of the inconsistencies, implausibilities, and contradictions” in her testimony, her...

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