                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-13-2007

Lin v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2985




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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 06-2985


                                      SHUN LIN,
                                                    Petitioner

                                            v.

                             ATTORNEY GENERAL OF
                              THE UNITED STATES,
                                              Respondent
                                  __________

                         Petition for Review of an Order of the
                          United States Department of Justice
                             Board of Immigration Appeals
                                 BIA No. A97-949-929
                         Immigration Judge: Eugene Pugliese
                                       __________

                      Submitted Under Third Circuit LAR 34.1(a)
                                on November 29, 2007

     Before: BARRY, FUENTES, Circuit Judges, and DIAMOND,* District Judge.

                              (Filed: December 13, 2007)



                                       OPINION



      *
        Honorable Paul S. Diamond, District Judge for the United States District Court of
the Eastern District of Pennsylvania, sitting by designation.

                                            1
FUENTES, Circuit Judge.

          Petitioner Shun Lin, a native and citizen of China, seeks review of the BIA’s

decision denying his appeal and affirming the Immigration Judge’s denial of his asylum

application. The IJ denied Lin’s application for asylum, withholding of removal under

the Refugee Convention and the Convention Against Torture (“CAT”) after making an

adverse credibility determination. Lin filed a timely petition for review of the BIA’s final

order of removal. We have jurisdiction pursuant to § 242(a)(1) of the Immigration and

Naturalization Act (“INA”), 8 U.S.C. § 1252(a)(1). For the reasons set forth below, we

deny the petition.

I.        Background

          Lin entered the United States on March 2, 2004. He was issued a Notice to Appear

on March 4, 2004 and removal proceedings were commenced. On the same day Lin

underwent a credible fear interview. During the interview, Lin claimed that he sought

asylum because he had violated China’s family planning policy by fathering a child. On

September 2, 2004, Lin submitted an asylum application. Despite his earlier claim that he

feared persecution because of his violation of China’s family planning policy, Lin sought

asylum on the ground that he feared persecution for practicing Falun Gong. In his

application, Lin admitted that he was not married, did not have any children and that he

had fabricated his story about violating the family planning policy.

     On February 22, 2005 a merits hearing was held and Lin testified that he left China


                                               2
because he suffered persecution for practicing Falun Gong. When asked about his

credible fear interview and his claim of persecution for violating family planning policies

he testified he did not tell the truth because of threats from “the snakehead.” In denying

Lin’s asylum application, the IJ found Lin’s testimony to be “vague”, “meager”, “utterly

unconvincing” and inconsistent in numerous respects with regard to his practice of Falun

Gong. The BIA adopted and affirmed the IJ’s adverse credibility determination.

II.    Discussion

  We have jurisdiction to review both the decision of the BIA and the decision of the IJ,

where the BIA adopts the findings of the IJ, substantially relying upon the adverse

credibility finding of the IJ and discusses some but not all of the IJ’s reasons for the

decision. See Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir. 2004). We review the

decisions of immigration judges, including adverse credibility determinations, under the

substantial evidence standard, which requires us to ascertain “whether the determination

is supported by evidence that a reasonable mind would find adequate.” Dia v. Ashcroft,

353 F.3d 228, 249 (3d Cir. 2003) (en banc).

  In his petition for review, Lin argues that the IJ’s adverse credibility determination was

based on speculation and minor discrepancies that do not go to the heart of his asylum

application and thus cannot constitute substantial evidence. He also asserts that he

demonstrated fear of future persecution. After careful review of the record, we find Lin’s

arguments wholly unavailing.

  At the hearing before the IJ, Lin testified that since he began practicing Falun Gong, in

                                              3
2002, he had never practiced it in public because it was forbidden by the authorities.

However, this claim was contradicted by his testimony that he passed out flyers relating

to Falun Gong in the street on two occasions. Lin alleged that the second time he was

distributing flyers, two police officers approached him and beat him up. He testified that

this central event occurred on September 25, 2002. Yet, his written application indicates

that the date of this event was November 8, 2002. Contrary to Lin’s assertion, this was

not a minor discrepancy about a tangential fact. Rather, it was nearly a two-month

discrepancy about the central event to his claim of persecution. On appeal, Lin now

asserts that he “may have provided a convincing explanation for the discrepancy [because

he might have been referring] to the Chinese lunar calendar at one of the occasions.” Pet.

Br. at 10. This post hoc attempt to explain the discrepancies in his testimony and sworn

statements does not undermine the IJ’s adverse credibility determination.

 Lastly, the IJ noted that when Lin was interviewed by an Asylum officer he claimed that

his basis for asylum was because he had a child while he was under age in violation of

China’s birth control policies but made no mention of his practice of Falun Gong. We

have held that an IJ is in the best position “to observe an alien’s tone and demeanor, to

explore inconsistencies in testimony” and is “uniquely qualified to decide whether an

alien’s testimony has about it the ring of truth.” Abdulrahman v. Ashcroft, 330 F.3d 587,

597 (3d Cir. 2003) (quotation omitted). Here, we conclude that the IJ’s adverse

credibility determination was not based on impermissible conjecture or speculation but

supported by “specific, cogent reasons.” Dia, 353 F.3d at 249.

                                             4
 The BIA determined that the IJ did not base his adverse credibility determination solely

on the inconsistencies between Lin’s statement during his credible fear interview and his

testimony at the merits hearing. It also noted that the IJ did not accord the inconsistencies

undue weight. The Board stated that the IJ instead used the inconsistencies to

demonstrate the “evolution” of Lin’s claim and to explain why detailed, consistent

testimony about his Falun Gong claim, which he failed to provide, was necessary. The

Board found that the discrepancies were sufficient to support the IJ’s adverse credibility

determination. We agree and conclude that the IJ’s adverse credibility determination was

based on substantial evidence.

III.   Conclusion

       For the foregoing reasons, we will deny the petition for review.




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