Qin v. Ashcroft

• Decision Date: 15 March 2004
• Docket Number: No. 03-1352.,03-1352.
• Citation: 360 F.3d 302
• Parties: Lin QIN, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

360 F.3d 302

Lin QIN, Petitioner, v. John ASHCROFT, Attorney General, Respondent.

No. 03-1352.

United States Court of Appeals, First Circuit.

Submitted February 10, 2004.

Decided March 15, 2004.

William A. Hahn, with whom Hahn & Matkov was on brief, for petitioner.

Joan E. Smiley, Trial Attorney, Office of Immigration Litigation, with whom Richard M. Evans, Assistant Director, and Peter D. Keisler, Assistant Attorney General, Civil Division, were on brief, for respondent.

Before BOUDIN, Chief Judge, LYNCH, Circuit Judge, and LIPEZ, Circuit Judge.

LYNCH, Circuit Judge.

Lin Qin, a native and citizen of the People's Republic of China, seeks review of the BIA's denial of her applications for asylum, withholding of removal, and relief under the United Nations Convention Against Torture (CAT). Finding substantial evidence to support the Immigration Judge's adverse credibility determination, we affirm.

I.

In February 1999, petitioner Lin Qin illegally entered the United States. Her immigration from China was arranged by a "snakehead"¹ to whom she paid $50,000 for smuggling her into the country with a fake passport. After reuniting in Boston with her husband from China, Xue Rong Zheng, who had himself illegally entered the United States in 1994, Lin became pregnant and gave birth to a baby girl in the United States in late December 1999. At around the time that her child was born, Lin applied for asylum. On May 26, 2000, the Immigration and Naturalization Service (INS)² commenced removal proceedings against Lin, charging her with being present in the United States without being admitted or paroled by an immigration officer.

Lin testified before an Immigration Judge (IJ) at a removal hearing. Conceding removability, Lin requested relief in the form of asylum, withholding of removal, protection under the CAT, and, in the event removal was necessary, voluntary departure. Lin was the only witness to testify; notably, Lin's husband Zheng, who was living with Lin at the time of the hearing, did not testify on her behalf.³ Lin's testimony recounted the following events.

Lin and Zheng were unofficially married in Changle City, China on April 12, 1992. At the time, both Lin and Zheng were nineteen years old, which Lin testified is below the required age for marriage in China; in order to get married, a woman must be twenty-two and a man must be twenty-three. On June 21, 1993, Lin gave birth to her first child, a boy named Zhang Jai, in a small hospital in the countryside. Knowing that she was too young to receive a permit to have a child, Lin had avoided the major hospitals where Chinese officials would be more likely to note the birth and did not register the child with the authorities.

Lin testified that despite her efforts to escape detection, she learned soon after Zhang Jai's birth that government officials were looking for her so that they could sterilize her. She and Zheng, along with their newborn son, moved from Zheng's family's house to Lin's mother's house in September 1993, where they believed Chinese officials would be less likely to find them. By March 1994, Lin was again pregnant. Lin testified that members of Zheng's village learned of her second pregnancy in April or May and told Zheng that he should turn in Lin so that she could be sterilized. The village officials threatened to sterilize Zheng should he refuse to turn over his wife. It was this threat, said Lin, that led Zheng to emigrate from China to the United States in May 1994. Lin, still living at her mother's house, stayed behind in China to look after her son.

Lin testified that in mid-July 1994, several months after Zheng had left for America, six people broke into her mother's house and dragged Lin to the hospital, where her pregnancy was forcibly aborted. Although these people — apparently government officials from Zheng's hometown — initially told the doctor to sterilize Lin, Lin's mother, who had also come to the hospital, convinced them not to perform the sterilization procedure. Lin said that her mother had pleaded with the officials that Lin might have children not in China, but in the United States.

According to Lin's testimony, these officials continued to harass her even after the forced termination of her pregnancy. They threatened to fine her about $6,000 and to sterilize her. Lin said that she fears that these officials will continue to harass her and will have her sterilized if she returns to China. At the conclusion of her direct testimony, Lin entered in evidence a hospital document in which her 1994 abortion was recorded. She also submitted a picture of herself and her son, who is apparently still living in China.

At the conclusion of Lin's testimony, the IJ asked Lin whether, as her testimony had indicated, government officials had learned of her second pregnancy when she was only one month pregnant. Lin responded "[n]o, the government discover I was pregnant, it is from March, April, May, June, July, that is four months." During cross-examination, Lin testified that Zheng lived with her at her mother's house after he was threatened with sterilization and before he left for America. But she then changed her story when confronted with an earlier sworn statement in her asylum application that Zheng moved in with his sister after he was threatened with sterilization. Finally, during cross-examination, Lin revised her earlier testimony about why she had not been sterilized when her pregnancy was forcibly aborted: Lin's mother had convinced the officials not to sterilize Lin by explaining that Lin could not get pregnant again because Zheng was in America.

After hearing Lin's testimony and considering her submissions in evidence, the IJ delivered an oral opinion which denied all forms of relief sought by Lin.⁴ The IJ first found that Lin was statutorily ineligible for voluntary departure because she had no travel documents enabling her to enter China.⁵ The IJ then decided against Lin on her claims for asylum, withholding of removal, and relief under the CAT, concluding that Lin was "not a credible witness and ... perjured herself under oath." After noting the conspicuous absence from the proceedings of Lin's husband, who lived only a ten-minute walk away, the IJ explained that Lin's testimony was, at times, inherently implausible and frequently self-contradictory.

Lin appealed the IJ's decision to the BIA, which summarily affirmed without decision. See 8 C.F.R. § 1003.1(a)(7) (2003).

II.

Lin makes two arguments in her petition for review. First, she says that the IJ's credibility determinations were not supported by substantial evidence. Second, she argues that her asylum application really had two different claims, but the IJ ruled on only one. Lin says that she argued to the IJ and to the BIA that she met the criteria for asylum for two independent reasons: first, that she has been persecuted and has a well-founded fear of future persecution because she and her husband were underage when they were married and had their first child; and second, that she was persecuted by being forced to have an abortion of her second child. Lin says the IJ ruled against her on the second claim but did not address the first, so she is entitled to a remand on that issue.

These asylum claims, if true, are serious. See Zhao v. U.S. Dep't of Justice, 265 F.3d 83, 92 (2d Cir.2001) (discussing Congress's findings concerning forced abortion and sterilization in China). But we conclude after our own review that Lin did not present these as two separate claims, but rather as one seamless argument in support of asylum, which explains the IJ's failure to focus on the first as an independent ground. More importantly, we conclude that the IJ's adverse credibility findings, which are supported by the record, doom the first claim, even assuming it had been clearly presented as an independent claim. As a result, we affirm.

The BIA's denial of Lin's asylum claims, absent legal error, "must be upheld if supported by reasonable, substantial, and probative evidence on the record considered as a whole." INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (internal quotation marks omitted); Albathani v. INS, 318 F.3d 365, 372 (1st Cir.2003). To reverse the BIA, we must be persuaded that "the evidence not only supports that conclusion, but compels it." Elias-Zacarias, 502 U.S. at 481 n. 1, 112 S.Ct. 812 (emphasis in original); Albathani, 318 F.3d at 372. In the case of an adverse credibility determination, the IJ must "offer a specific, cogent reason for [her] disbelief." El Moraghy v. Ashcroft, 331 F.3d 195, 205 (1st Cir.2003) (quoting Gailius v. INS, 147 F.3d 34, 47 (1st Cir.1998)). Where, as here, the BIA has summarily affirmed without opinion under 8 C.F.R. § 1003.1(a)(7), the findings and conclusions of the IJ are reviewed directly. See Keo v. Ashcroft, 341 F.3d 57, 60 (1st Cir.2003); Herbert v. Ashcroft, 325 F.3d 68, 71 (1st Cir.2003).

An applicant can qualify as a "refugee," and thus for consideration for asylum, either "(1) by demonstrating past persecution, thus creating a presumption of a well-founded fear of persecution; or (2) by demonstrating a well-founded fear of persecution." Yatskin v. INS, 255 F.3d 5, 9 (1st Cir.2001). Whether past or future, the persecution must be on the basis of race, religion, nationality, membership in a particular social group, or political opinion. El Moraghy, 331 F.3d at 203. Lin's asylum claim is based on the 1996 IRRIRA⁶ amendment to the definition of "refugee":

For purposes of determinations under this chapter, a person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to have been persecuted on account of political opinion, and a person who has a well founded fear that he or she will be...