Lin v. U.S. Dept. of Justice

• Citation: 453 F.3d 99
• Decision Date: 28 June 2006
• Docket Number: No. 02-4713-AG.,02-4713-AG.
• Parties: Li Hua LIN,<SMALL><SUP>*</SUP></SMALL> Petitioner, v. UNITED STATES DEPARTMENT OF JUSTICE; Alberto R. Gonzales,<SMALL><SUP>**</SUP></SMALL> Attorney General, Respondents.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

453 F.3d 99

Li Hua LIN,^* Petitioner, v. UNITED STATES DEPARTMENT OF JUSTICE; Alberto R. Gonzales,^** Attorney General, Respondents.

No. 02-4713-AG.

United States Court of Appeals, Second Circuit.

Argued: March 1, 2005.

Decided: June 28, 2006.

COPYRIGHT MATERIAL OMITTED

Bruno Joseph Bembi, Hempstead, N.Y., for Petitioner.

Charles E. Roberts, Assistant United States Attorney, for Glenn T. Suddaby, United States Attorney for the Northern District of New York, Syracuse, N.Y., for Respondents.

Before: CALABRESI, CABRANES, and POOLER, Circuit Judges.

CALABRESI, Circuit Judge.

Petitioner Lin Li Hua (No. A77-547-893), a native and citizen of the People's Republic of China, asks us to review an order of the BIA summarily affirming the IJ's denial of her application for political asylum and for withholding of removal under § 241(b)(3) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1231(b)(3), and Article 3 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("CAT"), Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988) 1465 U.N.T.S. 85. IJ Gabriel C. Videla denied Lin's asylum application on the ground that Lin had not carried her burden of proving that she had applied for asylum within one year of entering the United States, as required by 8 U.S.C. § 1158(a)(3). The IJ also held, in the alternative, that Lin's claim that she had been forcibly sterilized by the Chinese government was not credible. As such, the IJ held, Lin had not made out a claim for asylum and, a fortiori, for withholding of removal under the INA. Moreover, the IJ concluded that Lin had not shown that it was more likely than not that she would be subject to torture if she returned to China, and was therefore ineligible for CAT relief.

Based on our Court's decision in Xiao Ji Chen v. U.S. Dep't of Justice, 434 F.3d 144 (2d Cir.2006), we hold that, insofar as Lin challenges the IJ's credibility finding as it related to her evidence of timely filing, we are without jurisdiction to review the IJ's determination that Lin's asylum application was untimely. To the extent that Lin challenges that determination on due process grounds, we have jurisdiction to hear Lin's claim, see id. at 155, but her contention is without merit. As to Lin's application for withholding of removal under the INA, despite inconsistencies in Lin's testimony, the errors in the IJ's analysis lead us to grant Lin's petition for review and to remand to the BIA for reconsideration of her claim.

Background

Lin testified to the following facts at her removal hearing of May 1, 2000. Lin and her husband, Lin Dun Ji, were married on March 16, 1985.¹ They have two children together, a boy born October 15, 1988 and a girl born May 7, 1991. Three or four months after the boy was born, Chinese officials informed Lin that she needed to have an intrauterine device ("IUD") inserted. She refused and was fined 3,000 yuan, which her father-in-law paid after officials threatened to remove items from her house. Authorities returned some time later and again threatened to "take away everything from the house" unless Lin had an IUD inserted. She acquiesced. Lin testified inconsistently and confusingly concerning the date on which the IUD was inserted, sometimes giving a date in 1989, and sometimes one in 1991.

Lin found out she was pregnant with her second child in August 1990. Asked by her attorney how she was able to become pregnant with her second child with an IUD inserted, Lin replied, "I did not even know when the IUD was missing." Lin lived with her aunt an hour away from her home during the second pregnancy, but after Lin's daughter was born, family planning officials found out about the baby from people talking about the birth. Cadres visited Lin's home in order to have her sterilized, but since they did not find her there, they took her husband away instead. When Lin found out that her husband had been detained and threatened with beatings, she returned home immediately and turned herself in.

Lin was taken to the hospital, where she was forcibly sterilized. She described the procedure in graphic detail. She said that the medical staff administered partial anesthesia, but that it was still an intensely painful procedure. During this procedure, doctors held down her hands and tied down her feet, but did not secure any other parts of her body.

Two or three months after the sterilization, family planning officials visited Lin's home to collect a second fine, for 4,000 yuan. Her husband got into a fight with the officials and subsequently went into hiding. When the officials could not find him, Lin says, they destroyed his car.² Lin said she left China in 1998, and arrived in the United States on October 23 of that year. She testified that she did not leave earlier because her daughter was too young. She said she fears going back to China because she will be detained and beaten there upon her return. Lin filed her application for political asylum on June 7, 1999.

The IJ denied that application as untimely on the ground that Lin had failed to produce sufficient evidence that she had filed for asylum within one year of entering the United States. The IJ also held that Lin's claim that she had been forcibly sterilized in China was not credible. Specifically, the IJ said that Lin's demeanor and testimony suggested that she was not testifying from lived experience but was instead relating back information that she had not yet successfully committed to memory. Second, certain aspects of Lin's testimony, such as the alleged insertion of an IUD and her husband's detention, were not mentioned in her asylum application and certain affidavits submitted in support of her claim. Third, the household registration document Lin submitted, which indicated that her son was registered in December 1999 and her daughter in 1993, was inherently unreliable and contradicted portions of her testimony. Finally, and "most critical[ly]," according to the IJ, Lin's account of the sterilization procedure performed on her was not credible because, if Lin was in fact experiencing the pain she described, and if only her hands and feet were tied down, it would not be possible for doctors to perform so precise an operation. Moreover, it would be implausible for China to perform sterilizations with such bluntness if the goal was to sterilize successfully.

Since the IJ found Lin's account of coerced family planning incredible, he found that she could not meet her burden of showing either past persecution or a well-founded fear of future persecution, as she must in order to be eligible for asylum. Because the standard for withholding of removal under INA § 241(b)(3) is a more stringent standard than for asylum, see 8 C.F.R. § 208.16(b); Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir.2004), Lin also could not establish eligibility for withholding. Finally, the IJ found that Lin's statements as to the possibility that she would be beaten upon returning to China were too "vague" to establish eligibility for CAT relief.

Lin appealed to the BIA, which, in an order dated October 22, 2002, affirmed without opinion the IJ's decision. See 8 C.F.R. § 1003.1(e)(4). Lin timely petitioned for review with our Court. She argues that the IJ's determination that she did not meet her burden of establishing the timeliness of her application was arbitrary and, therefore, violates due process. Lin also contends that the IJ committed numerous errors in arriving at his adverse credibility determination, and that his analysis of her CAT claim misapplied the standard applicable to such claims.

Discussion

I. Timeliness of Lin's Asylum Claim

Subject to certain exceptions not relevant here, the INA requires that an asylum-seeker demonstrate "by clear and convincing evidence" that she has filed her application within one year of entering the country. 8 U.S.C. § 1158(a)(2)(B). Lin testified that she entered the United States on October 23, 1998. She also submitted an affidavit from her husband in which he stated that they reunited in the United States in October 1998. Since Lin applied for asylum in June 1999, her application would be timely if her testimony and her husband's affidavit were credited. The IJ held, however, that Lin's testimony, standing alone, was inadequate in light of his adverse credibility finding, and that her husband's affidavit "must be given diminished weight" because he was not present in the courtroom and available for cross-examination.

The INA provides that "[n]o court shall have jurisdiction to review any determination of the Attorney General under [§ 1158(a)(2)]." 8 U.S.C. § 1158(a)(3). We recently construed this language to deprive our Court of jurisdiction to review "discretionary and factual determinations" made by an IJ or the BIA pursuant to § 1158(a)(2). Xiao Ji Chen, 434 F.3d at 154. To the extent that Lin challenges the IJ's credibility determination as it relates to her claimed date of entry, therefore, we are without jurisdiction to review his rejection of her application as untimely. See Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003) ("Generally, courts have treated credibility questions in deportation proceedings as questions of fact . . . .").

Lin styles her timeliness argument, however, not as a challenge to the IJ's credibility determination, but as a constitutional claim. Lin contends that due process requires that an IJ's determination that an asylum-seeker has not met her burden of proof as to timeliness "be based on some evidentiary quantity and not on the IJ's own unsupported and arbitrary opinion." Petr.'s Br. at 16. Lin's argument amounts to a claim that the IJ held her to an impermissibly high burden of proof, and that this violates her constitutional right to due process.

Since Lin challenges the constitutionality of the IJ's decisionmaking process, we have jurisdiction to review her claim in light of the REAL...