Lin v. Holder

• Decision Date: 14 May 2009
• Docket Number: No. 08-3573.,08-3573.
• Citation: 565 F.3d 971
• Parties: Yinggui LIN, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

565 F.3d 971

Yinggui LIN, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent.

No. 08-3573.

United States Court of Appeals, Sixth Circuit.

Submitted: March 13, 2009.

Decided and Filed: May 14, 2009.

ON BRIEF:

Richard T. Herman, Law Offices, Cleveland, Ohio, for Petitioner. Craig A. Newell, Jr., Aviva L. Poczter, United States Department of Justice, Washington, D.C., for Respondent.

Before: MARTIN and GILMAN, Circuit Judges; ZOUHARY, District Judge.^*

OPINION

JACK ZOUHARY, District Judge.

Petitioner Yinggui Lin (Lin) is a Falun Gong practitioner who allegedly fled from persecution in China, including a Chinese police raid on his gaming business which resulted in the confiscation of equipment. Lin entered the United States illegally in September 2004 near Roma, Texas. That same month, the Department of Homeland Security served Lin with a Notice to Appear, alleging he was removable as an alien. Lin was granted a change of venue to Cleveland, Ohio in March 2005. In August 2005, Lin filed an application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT).

The immigration judge denied Lin's application at a merits hearing in August 2006. The denial was affirmed in April 2008 by the Board of Immigration Appeals (BIA). Lin filed this appeal in May 2008. He argues the BIA erred in upholding the immigration judge's finding that Lin failed to provide corroborating evidence of the circumstances supporting his request for asylum. Lin also argues the immigration judge erred in failing to find a nexus between his Falun Gong activities and the Chinese police's confiscation of his gaming equipment, and to properly review the State Department Human Rights Report on discrimination against Falun Gong practitioners in China. Finally, Lin argues his due process rights were violated when the immigration judge did not properly mark Exhibit 2 (his application for asylum with supporting documentation) into the record.

For the reasons set forth below, we DENY the petition on all grounds.

BACKGROUND

Falun Gong is a spiritual discipline comprised of meditation exercises with moral components, including cultivation of virtue and character. Introduction to Falun Dafa/Falun Gong, http://www.falundafa. org/eng/intro.html (last visited April 16, 2009).

According to Lin's testimony before the immigration judge, he has been a Falun Gong practitioner since 1997. Friends recommended the practice to aid in relaxation as well as physical and mental health. Lin ceased his practice in 1999 when the Chinese government began suppressing Falun Gong, but he renewed the practice in 2003.

One of Lin's fellow Falun Gong practitioners was arrested in 2003 and apparently reported Lin's name to the Chinese police. In December 2003, the police raided Lin's business, a gaming room, when he was not there. The police told Lin's employee Xianfei Wong, that Lin was being targeted because he was a Falun Gong practitioner. After the raid, the police confiscated Lin's gaming equipment and shut down his business.

Immediately following this incident, Lin left Hangzhou and moved to Shenzen, where he stayed with a friend and continued to practice Falun Gong. Lin's employer, a restaurant owner, saw Lin practicing Falun Gong while at work in June 2004. His employer told him to cease his practice or he would call the police. Instead, Lin left this job.

In December 2003, while Lin was living in Shenzen, police visited his parents' house in Hangzhou, showed his parents a notice for Lin's appearance, and asked where he was. The police allegedly wanted to arrest Lin because of his Falun Gong practices and asked his parents to advise Lin to surrender himself to authorities, which Lin refused to do. According to his parents, police continued to look for Lin through August 2005.

Lin left China in July 2004, borrowing money from friends and relatives and paying a "snakehead" $30,000 to smuggle Lin into the United States. He entered the United States illegally in September 2004 near Roma, Texas, and the next day was served with papers charging him as an illegal alien. Lin currently lives in Cleveland with his cousin and several others. He continues to practice Falun Gong, although his cousin and others living with them, who allegedly have observed his practice, did not testify at the hearing.

The immigration judge issued an oral decision at the conclusion of the August 2006 merits hearing denying Lin's applications for asylum, withholding of removal, and CAT protection.

Although the judge found Lin credible, he based his denial on Lin's failure to present corroborating evidence of his Falun Gong practice in China and the United States. The judge specifically found Lin did not "provide an adequate explanation for his failure to produce," for example, statements from friends with whom he practiced Falun Gong in Hangzhou, the friend with whom he stayed in Shenzen, his employer in Shenzen, or others in the United States (JA 35-37). The judge also sought corroboration of the incident when the Chinese police appeared at his parents' home, but Lin could not produce the notice served by the police, allegedly because his parents destroyed the notice in anger after the police left. The judge found the alleged intentional destruction of the document an inadequate explanation for the document's absence.

The judge acknowledged the affidavit from Xianfei Wong, Lin's employee at his gaming room, but found this sole piece of corroborating evidence "too speculative to make a definitive conclusion" (JA 38). Likewise, the letter Lin proffered from his parents was "not very specific" and contained no dates or details regarding the police confrontation or that the police interference was because of Lin's Falun Gong practice (JA 39). The judge found the letter from Petitioner's aunt similarly vague and general, entitled to "very limited weight under the circumstances" (id.).

Lin failed to carry the burden of proof required for granting asylum because he demonstrated neither past persecution in China for his Falun Gong practice nor "a well-rounded fear of future persecution based upon a totality of the evidence" (JA 40). Because Lin failed to meet his burden to show eligibility for asylum, he necessarily failed to meet the higher burden required for withholding of removal, and failed to demonstrate the likelihood of torture on his return to China.

The BIA affirmed the immigration judge's findings that Lin failed to meet his burden of proof and questioned the absence of many documents or witnesses that Lin might have been able to produce to corroborate his Falun Gong practice. The BIA indicated that "[w]hile the lack of some of these may be adequately explained, the overall lack of support leads us to agree with the Immigration Judge" (id.). Though the BIA noted that "a respondent's testimony[] alone may be sufficient to support an application for relief, here, without other support, it failed to meet [Petitioner's] burden of proof" (id.). Lin now appeals the BIA's decision.

ANALYSIS

Standard of Review

Lin argues this Court should conduct a de novo review of the BIA's fact-finding because the BIA allegedly erred in its interpretation of the law. However, the proper standard governing this Court's review of the BIA's findings of fact is substantial evidence. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); Thermija v. INS, 102 Fed.Appx. 920, 921 (6th Cir.2004) ("[F]indings of fact are `conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.'" (quoting 8 U.S.C. § 1252(b)(4)(B))). Under this deferential standard of review, the court "must uphold the BIA's decision if it is `supported by reasonable, substantial, and probative evidence on the record considered as a whole.'" Abay v. Ashcroft, 368 F.3d 634, 637 (6th Cir.2004) (quoting Mikhailevitch v. INS, 146 F.3d 384, 388 (6th Cir.1998)). A reviewing court may not reverse on the basis that it would have decided the case differently; rather reversal is merited only if "the evidence not only supports a contrary conclusion [as argued by the petitioner], but indeed compels it." Hammer v. INS, 195 F.3d 836, 840 (6th Cir.1999); see also Elias-Zacarias, 502 U.S. at 481 n. 1, 112 S.Ct. 812.

Questions of law and constitutional questions are subject to de novo review, with deference to the BIA's reasonable interpretation of the statutes and regulations. Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 980-81, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005) (citing Chevron, U.S.A., Inc. v. Natural Resources Def. Council, 467 U.S. 837, 843-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)).

Petition for Asylum

To establish eligibility for asylum, an applicant must establish he is a "refugee" within the meaning of INA Section 101(a)(42), 8 U.S.C. § 1101(a)(42). "To establish that the applicant is a refugee ..., the applicant must establish that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant." 8 U.S.C. § 1158(b)(1)(B)(i). An asylum applicant bears the burden of demonstrating that "persecution is a reasonable possibility should he be returned to his country of origin." Perkovic v. INS, 33 F.3d 615, 620 (6th Cir.1994) (quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 440, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987)). In determining whether an applicant for asylum has sustained his burden,

[t]he testimony of the applicant may be sufficient to sustain the applicant's burden without corroboration, but only if the applicant satisfies the trier of fact that the applicant's testimony is credible, is persuasive, and refers to specific facts sufficient to demonstrate that the applicant is a refugee.... Where the trier of fact determines that the applicant should provide evidence that corroborates otherwise...