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


4-23-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5267




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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 05-5267
                                     ____________

                                    QUAN FA LIN,

                                           Petitioner

                                            v.

                 ATTORNEY GENERAL OF THE UNITED STATES,

                                          Respondent
                                     ____________

                           On Petition for Review from an
                      Order of the Board of Immigration Appeals
                               (Board No. A97 646 610)
                         Immigration Judge: Annie S. Garcy
                                    ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                  March 26, 2007

                Before: FISHER, JORDAN and ROTH, Circuit Judges.

                                 (Filed: April 23, 2007)
                                     ____________

                              OPINION OF THE COURT
                                   ____________

FISHER, Circuit Judge.

      Quan Fa Lin (“Lin”) seeks review of an order of the Board of Immigration

Appeals (“BIA”) affirming the denial of his request for asylum, withholding of removal,
and relief under the Convention Against Torture (“CAT”). For the reasons set forth

below, we will deny the petition.

                                             I.

       Because we write only for the parties, we forgo a lengthy recitation of the factual

and procedural background of this case. Lin, a native and citizen of the People’s

Republic of China, entered the United States illegally through Mexico on January 29,

2003. On September 13, 2003, Lin filed a petition for asylum, withholding of removal

and protection under the CAT on the ground that his wife had been involuntarily

sterilized.1 He admitted in his application for asylum that he had entered the country

illegally.

       At his immigration hearing, Lin testified that he was born and married in Changle

City and that, after his marriage, he and his wife moved to Guangzhou in order to hide

from government officials while having children. Lin further testified that on October 26,

2001, while visiting Changle City to attend his mother-in-law’s funeral, local officials

forcibly sterilized his wife and fined him upon realizing that they had violated China’s

family planning policies by not waiting four years before giving birth to their second




       1
        In In re C-Y-Z, 21 I & N Dec. 915, 918 (BIA 1997), the BIA determined that a
petitioner could file for asylum on the basis of his spouse’s forced sterilization. We have
yet to expressly adopt the holding of C-Y-Z, Chen v. Ashcroft, 381 F.3d 221, 226-27 (3d
Cir. 2004), and need not do so today as we affirm on other grounds.

                                             2
child. Lin testified that on January 12, 2003, he left China in an effort to gain asylum in

the United States.

       By oral decision dated July 26, 2004, the Immigration Judge (“IJ”) denied Lin’s

application for asylum, withholding of removal, and protection under the CAT, citing

specific contradictions and inconsistencies in his testimony and deeming him not credible.

On November 3, 2005, the BIA adopted and affirmed the IJ’s decision. On December 1,

2005, Lin timely filed a petition with this Court to review the order of the BIA.

                                             II.

       We have jurisdiction to review a final order of removal pursuant to 8 U.S.C.

§ 1252(a)(1). In this case, because the BIA affirmed the IJ’s decision without opinion,

we review the decision of the IJ. Zhang v. Gonzales, 405 F.3d 150, 155 (3d Cir. 2005).

       An alien has the burden of supporting his claims for relief from removal. His

testimony alone, if credible, may be sufficient to meet that burden. Dia v. Ashcroft, 353

F.3d 228, 247 (3d Cir. 2003) (en banc). As Lin only appeals the IJ’s credibility

determination, we focus our discussion on that decision. An adverse credibility

determination is a finding of fact which is “conclusive if there is substantial evidence in

the record to support it.” Senathirajah v. INS, 157 F.3d 210, 216 (3d Cir. 1998) (citation

omitted). We grant substantial deference to the IJ’s credibility determination, recognizing

that an “immigration judge alone is in a position to observe an alien’s tone and demeanor,

to explore inconsistencies in testimony, and to apply workable and consistent standards in



                                              3
the evaluation of testimonial evidence . . . 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)

(quoting Sarvia-Quintanilla v. INS, 767 F.2d 1387, 1395 (9th Cir. 1985)). We must,

therefore, affirm the opinion of the IJ “unless any reasonable adjudicator would be

compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).

                                             III.

       In this case, Lin argues that the adverse credibility determination is not supported

by substantial evidence, and any inconsistencies in his testimony are minor and do not go

to the heart of the asylum claim. Additionally, Lin submits that the findings of the IJ are

based on speculation and conjecture. After reviewing the record, we conclude that there

are sufficient material inconsistencies to uphold the adverse credibility determination and

that substantial evidence supports the findings of the IJ.

       The IJ first pointed to inconsistencies in Lin’s testimony regarding where he lived,

worked, and started his family. In his testimony, Lin claimed that his wife was forcibly

sterilized seven years after last giving birth. To explain the seven-year delay, Lin testified

that after his marriage in his home town of Changle City, he and his wife moved to

Guangzhou to work unofficially and avoid Changle City’s strict family planning policy.

While in Guangzhou, Lin’s wife gave birth to two children within a four year period.

However, it was not until their return to Changle City seven years later, to attend Lin’s

mother-in-law’s funeral, that his wife was spotted and taken to be sterilized. However,



                                              4
the IJ determined that all of the documents submitted by Lin, aside from a letter from his

wife, stated that his children were both born and raised in Changle City. In addition, the

IJ found no documentary proof that Lin ever worked in Guangzhou. In fact, Lin’s

floating population card fails to indicate that Lin was ever outside of Changle City for

employment purposes. The IJ found these inconsistencies to be very serious.

       However, at least as to these inconsistencies, we agree with Lin that they are

insufficient for an adverse credibility determination. As Lin has rightly indicated in his

brief, if Lin and his wife were hiding from the authorities in Guangzhou, it is highly

unlikely that they would have official documentation of their time there. Therefore,

standing alone, this reasoning of the IJ would be insufficient for an appropriate adverse

credibility determination.

       However, the IJ found other inconsistencies that do support her determination.

First, Lin testified that, after his wife’s sterilization, he paid the whole of a fine for

violating China’s family planning policies. Yet, in a letter sent to the IJ, Lin’s wife

claims that it was she who actually paid the fine. In addition, Lin’s credibility was

weakened by the fact that he admitted to having told his wife what the contents of her

letter to the IJ should be. While the evidence the IJ used to make an adverse credibility

determination is certainly not overwhelming, it is “more than a mere scintilla and is such

relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” Ezeagwuna v. Ashcroft, 301 F.3d 116, 126 (3d Cir. 2002).



                                                5
       However, even if the IJ did not make a specific adverse credibility determination,

the IJ’s decision is still supported by substantial evidence. A petitioner bears the burden

of proving his asylum claim. Dia, 353 F.3d at 247. Lin had no evidence, other than his

own statement and that of his wife, that she was sterilized by force, not by choice. Lin

testified before the IJ that, following the birth of their two children, Lin’s wife began to

suffer from reproductive health problems that could have been solved with sterilization.

He offered no evidence proving that it was forced sterilization, and not these health

problems, that led to his wife’s sterilization. Further, as the letter from Lin’s wife

affirming the forced sterilization was, in essence, dictated by Lin to his wife, the IJ could

have reasonably found there was insufficient evidence of a forced sterilization.

       The IJ’s determination that Lin failed to meet his burden of proof is based on

substantial evidence. The inconsistencies regarding payment of the fine and Lin’s wife’s

letter are not based on speculation and conjecture, but represent “concrete, specific, and

cogent” discrepancies and failures to corroborate which are directly related to Lin’s claim

of persecution and as such provide an adequate basis for the IJ’s adverse credibility

determination. See Barishaj v. Ashcroft, 378 F.3d 314, 324 (3d Cir. 2004). There is

nothing in the record that would compel a reasonable adjudicator to reach a conclusion

contrary to that reached by the IJ.2


       2
       Because Lin failed to meet the eligibility requirements for asylum, he could not
meet the more stringent applicable standard for withholding of removal. See Janusiak v.
INS, 947 F.2d 46, 47 (3d Cir. 1991). Also, nothing in the record supports a likelihood of

                                              6
                                            IV.

       For the foregoing reasons, we conclude that substantial evidence supports the

BIA’s and IJ’s decisions to deny relief, and we will accordingly deny the petition for

review.




Lin being tortured upon his return to China. Accordingly, the CAT claim was properly
rejected.

                                             7
