                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-18-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2927




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                                                                NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                       No. 08-2927
                                       ___________

                                        LI HUI LIN,
                                                         Petitioner

                                             v.

                  ATTORNEY GENERAL OF THE UNITED STATES

                       ____________________________________

                      On Petition for Review of an Order of the
                            Board of Immigration Appeals
                              (Agency No. A99-672-998)
                Immigration Judge: Honorable Margaret R. Reichenberg
                     ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 November 14, 2008
                  Before: BARRY, SMITH and GARTH, Circuit Judges

                           (Opinion filed: November 18, 2008 )
                                       ___________

                                        OPINION
                                       ___________

PER CURIAM

       Li Hui Lin, a Chinese native and citizen, petitions for review of a final order of the

Board of Immigration Appeals (“BIA”) affirming the denial by the Immigration Judge

(“IJ”) of Lin’s application for asylum, withholding of removal and relief under the
Convention Against Torture (“CAT”). Before the IJ, Lin testified that he had suffered

past persecution and feared future persecution by the Chinese government as a

practitioner of Christianity. Specifically, Lin alleged that in July 2002, at the urging of

his friend and to alleviate his depression, he joined an “underground” Christian church.

According to Lin, the authorities discovered his church attendance, arrested, interrogated,

and beat him and one year later, after he escaped a second church raid, came to his house

and threatened his parents. Lin testified that, fearing future persecution, he went to live

with his aunt for six months and then fled to the United States.

         The IJ, in an order denying Lin’s various petitions for relief, determined that Lin

was not credible with regard to his encounters with the police and the consistency of his

church attendance in China. The IJ also found that, even if Lin’s testimony was credible,

it did not establish that he suffered past persecution or a well-founded fear of future

persecution. The IJ also rejected Lin’s CAT claim. The BIA affirmed the IJ’s decision.

         We have jurisdiction pursuant to 8 U.S.C. § 1252(a). We uphold the BIA’s

determinations if they are supported by reasonable, substantial and probative evidence on

the record considered as a whole. Yusupov v. Att’y Gen., 518 F.3d 185, 197 (3d Cir.

2008). Where the BIA substantially relies on the IJ’s adverse credibility determination,

we have jurisdiction to review both opinions. Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir.

2004).

         To be granted asylum, Lin must show that he is “unable or unwilling to return to



                                               2
[China] . . . because of persecution or 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); see also 8 U.S.C. § 1158(b)(1)(A). To be eligible for

withholding of removal, Lin must demonstrate that “there is a greater-than-fifty-percent

chance of persecution” in China based on one of these protected grounds. Senathirajah v.

INS, 157 F.3d 210, 215 (3d Cir. 1998); see also 8 U.S.C. § 1231(b)(3)(C). For relief

under the CAT, Lin must demonstrate that it is more likely than not that he would be

tortured if removed to China. See 8 C.F.R. § 208.16(c)(2).

       The BIA’s finding that Lin’s testimony was not credible is supported by substantial

evidence. See Sukwanputra v. Gonzales, 434 F.3d 627, 636 (3d Cir. 2006) (an adverse

credibility determination is appropriately based on inconsistent statements and

contradictory evidence). The IJ disbelieved Lin’s testimony regarding the number of

times he attended the underground church. The IJ found that Lin’s testimony that he

attended church only five or six times during a two-year period (before the 2004 incident)

conflicted with letters Lin submitted from his friend who portrayed him as a more active

church member. Lin further testified that, after the April 2004 incident, he did not go to

church until December 2005 when his church was once again raided by the village cadre

(which led to Lin fleeing to his aunt’s house). The IJ found that this testimony conflicted

with Lin’s statement, his father’s statement, and his friend’s statement which all indicated

that Lin continued to attend church after the 2004 raid. Lin does not explain the



                                              3
inconsistency but states, without support, that he believes that his testimony was

consistent with the letters from his friend and his father. The IJ’s credibility

determination, however, is supported by specific and cogent reasons and “flow[s] in a

reasoned way from the evidence of record.” Dia v. Ashcroft, 353 F.3d 228, 250 (3d Cir.

2003).

         Because Lin cannot satisfy the standard for asylum, he cannot satisfy the higher

burden of proof for withholding of removal. Janusiak v. INS, 947 F.2d 46, 47 (3d Cir.

1991). Nor does the record show that Lin would likely be tortured by or with the

acquiescence of a Chinese official. Therefore, he is not eligible for protection under the

CAT. Pierre v. Att’y Gen., 528 F.3d 180, 190 (3d Cir. 2008) (en banc).




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