Ying Jin Lin v. Holder

• Citation: 561 F.3d 68
• Decision Date: 30 March 2009
• Docket Number: No. 08-1789.,08-1789.
• Parties: YING JIN LIN, Petitioner, v. Eric H. HOLDER, Jr.<SMALL><SUP>*</SUP></SMALL>, Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

561 F.3d 68

YING JIN LIN, Petitioner, v. Eric H. HOLDER, Jr.^*, Attorney General, Respondent.

No. 08-1789.

United States Court of Appeals, First Circuit.

Submitted March 4, 2009.

Decided March 30, 2009.

Joshua E. Bardavid, for petitioner.

Gregory G. Katsas, Assistant Attorney General, Civil Division, Greg D. Mack, Senior Litigation Counsel and Corey L. Farrell, Attorney, Office of Immigration Litigation, United States Department of Justice, on brief for respondent.

Before BOUDIN, JOHN R. GIBSON,^** and HOWARD, Circuit Judges.

HOWARD, Circuit Judge.

The petitioner, Ying Jin Lin, a native and citizen of the People's Republic of China ("China"), seeks review of a Board of Immigration Appeals ("BIA") final order upholding an Immigration Judge's ("IJ") denial of her applications for asylum, withholding of removal, and protection under the United Nations Convention Against Torture ("CAT"). Discerning substantial evidence in the record in support of the BIA's order, we deny her petition for review.

I. Background

Petitioner Lin was born October 11, 1981, in the Fujian Province of China. She arrived at Los Angeles International Airport in July 2001, lacking valid entry documents. Accordingly, she was detained and a few days later the INS issued a Notice to Appear charging Lin with removability pursuant to Immigration and Nationality Act ("INA") § 212(a)(7)(A)(i)(I), 8 U.S.C. § 1182(7)(A)(i)(I). At a hearing in April 2003, Lin conceded removability as charged. She subsequently applied for asylum and withholding of removal, and her application was also treated as a request for withholding of removal based on the United Nations Convention Against Torture ("CAT").

Including Lin's testimony at a hearing before the IJ in February 2005, she has had four occasions to explain the basis for her asylum application. Initially, she delivered a sworn statement, through a Mandarin interpreter, to an immigration officer at the airport in Los Angeles. In this statement, Lin said that she had "made the mistake of attending a meeting," and was "taken into custody on suspicion of" membership in Falun Gong. While in custody, she was "beaten up and narrowly escaped being violated." Lin also indicated that she, along with the others who had been arrested, was "bailed out with the advice that each of us is fined 40,000 Renminbi (about $5,000) or be arrested and jailed again." The statement concludes, "I could not afford the fine so I escaped."

Two days after her initial interview, Lin was referred to an asylum officer for a credible fear interview. That interview, again conducted with the aid of an interpreter, was summarized on a hand-written form. It reads, in relevant part:

The Applicant was standing in front of a friend's house with 10-12 other school friends after a party. Applicant stated that as they talked, suddenly police appeared accusing the group of practitioners of [sic] Falun Gong.... The group was beaten, hand-cuffed, taken to the police station and detained for 10 days, where they suffered further beatings/kicks. Friends bailed the Applicant out & she fled the country.

Based on this interview, the asylum officer determined that Lin had established a credible fear of persecution, and she was allowed to remain in the country pending a hearing before an IJ.

Lin's Application for Asylum and Withholding of Removal, submitted under oath in February 2005, was based on political opinion and membership in a particular social group. Lin claimed that "The Chinese Government falsely accused me of being a member of Falun Gong." She explained that one night as she and her friends were drinking and loudly "partying" in a private room inside a club, "a policeman suddenly kicked open the door to room [sic] we were in." The police yelled at Lin and her friends and hit them with batons, and Lin "fled towards the door of the club." As she reached the outside of the club, Lin was "grabbed by an officer who was waiting" there, "handcuffed," and taken to the police station. Upon arrival at the station, Lin was informed that she had been arrested due to participation in Falun Gong, which she denied continuously during the ten days she was detained. Her captors gave her little food and beat her when she refused to confess to involvement with Falun Gong. Lin "was eventually released ... with the help of a family friend." As Lin described it, this contact of her father's "interceded on [her] behalf and secured [her] release."

Lin was the only witness who testified at her subsequent hearing before the IJ. She testified that she was arrested "in a bar," and that she was arrested "[b]ecause we were kind of high in that bar with a lot of our friends and we drank a lot and we sing and we dance." In response to a subsequent question, she added that she had been arrested "[b]ecause they accused me of being Falun Gong practitioner, they accused me of practicing Falun Gong." She and her friends — a mix of co-workers and classmates — had gathered at the bar for "a party." When asked why the government might suspect her of involvement with Falun Gong, Lin said "they felt I was under age drinking in a bar and I was a little high in the bar and with a disorderly conduct."

On cross-examination, Lin repeatedly disputed the accuracy of her credible fear interview, and claimed she had never said she was "outside a house in front of a street" when she was arrested. Instead, she claimed she was in a room in a karaoke bar. She explained that the arrest took place "close to a friend of mine's house."

Lin was also questioned about the circumstances of her release from jail. She testified that "[m]y father bailed me out through his friends." She indicated that her father borrowed the funds to make the payment for her release, which amounted to 40,000 to 50,000 Renminbi, and later referred to a particular "person ... my father went through with the money and got me out of the detention center...." On re-direct, Lin testified that the payment "was a bribe."

The IJ questioned Lin directly regarding the details of her incarceration. She testified that "they beat me almost every day, every time they don't ... like my answer...." After her release, Lin called on a doctor to attend to her injuries, which included bruises, swelling, and scabs from where the beatings had broken her skin. The doctor gave her "some medicine" and applied "seven or eight" bandages to her wounds. Lin could not attest to any similar treatment of her classmates or coworkers, because she never saw them during her detention and never spoke with them again.

Although initially the IJ said he thought Lin testified "very well," after taking the case under advisement he issued an oral decision discussing "inconsistencies and implausibilities with respect to the material aspects of her asylum claim." The IJ accordingly ruled that her testimony was not credible and consequently that her applications would be rejected. Lin timely appealed the IJ's ruling to the BIA, which dismissed her appeal.¹ This petition followed.

II. Discussion

We begin our analysis with the petitioner's asylum claim. To qualify for asylum, an applicant must establish that she has a "well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1101(a)(42)(A); Bebri v. Mukasey, 545 F.3d 47, 50 (1st Cir.2008). The applicant's own testimony, if credible, can on its own be sufficient to meet this burden. Segran v. Mukasey, 511 F.3d 1, 5 (1st Cir.2007); 8 C.F.R. § 1208.13(a). If, however, the IJ deems the testimony spurious, it may be discounted or completely disregarded. Segran, 511 F.3d at 5; Nikijuluw v. Gonzales, 427 F.3d 115, 121 (1st Cir.2005). Thus, "`an adverse credibility determination can prove fatal' to an asylum claim." Bebri, 545 F.3d at 50 (quoting Pan v. Gonzales, 489 F.3d 80, 86 (1st Cir.2007)); Yosd v. Mukasey, 514 F.3d 74, 80 (1st Cir.2008). In the event that an applicant is found not to be entirely credible in her testimony, corroborating evidence may be used to bolster her credibility. Dhima v. Gonzales, 416 F.3d 92, 95 (1st Cir.2005).

In making a finding of adverse credibility, an "IJ must provide a `specific, cogent, and supportable explanation for rejecting an alien's testimony.'" Abdelmalek v. Mukasey, 540 F.3d 19, 22-23 (1st Cir.2008) (quoting Teng v. Mukasey, 516 F.3d 12, 16 (1st Cir.2008)). For cases arising prior to implementation of the Real ID Act of 2005, we have applied a "heart of the matter" standard, under which "discrepancies relied upon in making adverse credibility determinations must `pertain to facts central to the merits of the alien's claims, not merely to peripheral or trivial matters.'" Bebri, 545 F.3d at 50 (quoting Zheng v. Gonzales, 464 F.3d 60, 63 (1st Cir.2006)); Bojorques-Villanueva v. INS, 194 F.3d 14, 16 (1st Cir.1999). The Real ID Act does away with this rule for asylum claims filed after May 11, 2005, but the rule is applicable to Lin's case, which commenced with her February 10, 2005 applications. Bebri, 545 F.3d at 50 n. 1; Lutaaya, 535 F.3d at 70 n. 8; Yosd, 514 F.3d at 80 n. 6; Castaneda-Castillo v. Gonzales, 488 F.3d 17, 23 n. 6 (1st Cir.2007) (en banc). Thus, we will uphold the adverse credibility finding in this case if (1) the discrepancies and omissions underlying the determination are actually present in the record; (2) those discrepancies and omissions provide specific and cogent reasons to conclude that the petitioner's testimony was incredible with regard to facts central to the merits of her asylum claim; and (3) the petitioner has failed to provide a convincing explanation for the discrepancies and omissions. Zeru v. Gonzales, 503 F.3d 59, 69-70 (1st Cir.2007); Hoxha v. Gonzales, 446 F.3d 210, 214 (1st Cir.2006).

Here, the IJ concluded that "inconsistencies and implausibilities" rendered Lin's testimony incredible, and the BIA dismissed her appeal, finding that the IJ's...