                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-3-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3017




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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                    No. 04-3017


                                     GUI LIN,
                                                  Petitioner
                                         v.

             ATTORNEY GENERAL OF THE UNITED STATES
          SECRETARY, DEPARTMENT OF HOMELAND SECURITY,

                                                  Respondents


                 PETITION FOR REVIEW OF A DECISION OF
                  THE BOARD OF IMMIGRATION APPEALS
                          Agency No. A78-862-966


                   Submitted Under Third Circuit LAR 34.1(a)
                              September 13, 2005


             Before: SLOVITER, BARRY, and SMITH, Circuit Judges


                          (Opinion Filed: October 3, 2005)




                                     OPINION




BARRY, Circuit Judge
       Gui Lin, a native and citizen of the People’s Republic of China (“PRC”), petitions

this Court for review of a final order of removal of the Board of Immigration Appeals

(“BIA”). We will deny the petition.

                                            I.

       On April 20, 2002, Lin entered the United States at Chicago, Illinois without travel

documents. The then-Immigration and Naturalization Service (“INS”) 1 detained him and,

on May 9, 2002, served him with a notice to appear before an immigration judge (“IJ”).

Soon thereafter, Lin was paroled and released from detention. The IJ in Chicago granted

a change of venue to New York City on June 27, 2002. Subsequently, venue was

changed again, this time to Newark, New Jersey, where Lin filed a form I-589 seeking

asylum, withholding of removal to the PRC, and protection under the United Nations

Convention Against Torture (“CAT”).

       On May 6, 2003, an IJ held a hearing. At the hearing, Lin testified that he did

payroll work at a government-owned cement factory in the PRC. While out with his boss

and some fellow employees, Lin claimed to have overheard a conversation in which his

boss was described as taking kickbacks. He also claimed to have witnessed large sums of

money change hands. The next day, Lin’s boss offered him 10,000 RMB in exchange for

his silence. Afraid of breaking the law, Lin turned down the money, after which his boss




   1
   Enforcement of United States immigration laws now falls within the purview of the
Department of Homeland Security. See 6 U.S.C. § 271 (2002).

                                            2
issued what Lin perceived to be a veiled threat by mentioning how well-connected he was

in town. The following day, while heading to work, Lin was assaulted by a group of men

he contends were acting at the behest of his boss. He testified that he was later treated for

a bloody nose and did not return to work. A few days later, his boss paid him a visit, gave

him gifts, and advised him to rest. That visit, according to Lin, convinced him that his

boss’s threats would not cease.

       Lin, afraid of his boss, spent several months hiding out in the home of a friend.

Eventually, Lin and his family hired a smuggler to get him out of the PRC. He arrived in

Chicago after a stop in the Netherlands. Lin learned from his father that, after Lin fled

the country, his boss destroyed property at their home and threatened his family.

       The IJ disbelieved much of Lin’s testimony. Moreover, the IJ found that even if

that testimony were to be believed, it would not support Lin’s claims. Consequently, the

IJ denied Lin’s applications and ordered him removed to the PRC. On June 23, 2004, the

BIA affirmed that decision without opinion. Lin timely filed the instant petition for

review.

                                             II.

       We have jurisdiction pursuant to 8 U.S.C. § 1252(a) to review final orders of

removal. Where, as here, the BIA affirms the IJ’s order of removal without opinion, we

review the IJ’s decision. Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir. 2002). If the

factual findings–including adverse credibility determinations–underlying that decision are



                                             3
supported by substantial evidence, we must uphold them. See id. at 272; Xie v. Ashcroft,

359 F.3d 239, 242 (3d Cir. 2004). Only if we were to find that “‘no reasonable person’

would have found the applicant incredible,” Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.

2004), may we upset the IJ’s adverse credibility determination. See 8 U.S.C. § 1252

(b)(4)(B); INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992) (“To reverse the BIA

finding we must find that the evidence not only supports that conclusion, but compels it . .

. .”) (emphasis in original). Nevertheless, an IJ’s adverse credibility determination must

be based on evidence in the record and may not rest merely on speculation. See Gao, 299

F.3d at 272. That is, an IJ must base an adverse credibility determination on “specific[,]

cogent reasons,” id. at 276, such as “inconsistent statements, contradictory evidence, and

inherently improbable testimony.” Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir. 2003)

(citation and internal quotation marks omitted).2

                                            III.

       Here, the bases for the IJ’s adverse credibility determination included Lin’s

statement during his initial encounter with the INS that he had not been persecuted by the

PRC government; his failure to mention to the INS the beating he allegedly suffered; the

unlikelihood that someone with his limited education would have held the payroll job at




   2
    We note that section 101(a)(3) of the Real ID Act of 2005, Pub.L. No. 109-13, 119
Stat. 305, has amended the credibility provisions of 8 U.S.C. § 1158(b)(1). Lin’s petition,
however, predates the effective date of the statute. Consequently, we apply “old” law to
the IJ’s decision.

                                             4
the cement factory; his inability to provide any evidence that he held that job or even that

the cement factory existed, despite receiving assistance in seeking asylum from people in

the PRC; and his failure to provide any documentary evidence of medical care for the

injuries he allegedly sustained in the attack. We cannot say that a reasonable person,

presented with such evidence, would be compelled to find Lin credible.

       In any event, the IJ correctly found that Lin’s petition must fail regardless of any

credibility concerns. A claim for asylum on the basis of past persecution requires proof

of one or more incidents amounting to persecution; that the persecution was “on account

of” a statutorily protected ground;3 and that it was committed by the government or forces

the government is unable or unwilling to control. See Abdulrahman v. Ashcroft, 330 F.3d

587, 592 (3d Cir. 2003). At most, what we have here, even if we accept Lin’s recounting

of the events and even if we assume that the apparently minor injuries he received would

amount to “persecution,” is a “private matter” (A.R. 41), not an instance of political

persecution. Likewise, there is no evidence that the government was unable or unwilling

to control Lin’s boss. Indeed, despite testifying that other officials would protect his

boss, Lin stated that his boss would “probably” be arrested if the kickback scheme were

publicized, (A.R. 98), a fact consistent with Lin’s description of his boss as somebody



   3
    The statutorily protected grounds are “race, religion, nationality, membership in a
particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). Alien
petitioners are now required by the Real ID Act to establish that one of the statutory
factors “was or will be at least one central reason for persecuting the applicant.” 8 U.S.C.
§ 1158(b)(1)(B)(I). As noted above, supra note 3, that statute is inapplicable here.

                                              5
afraid of having his conduct revealed.4

       Nor is there anything in the record, even taking Lin at his word, to support a claim

of asylum based on a well-founded fear of future persecution. To prevail, an applicant

must demonstrate “a genuine fear, and that a reasonable person in her circumstances

would fear persecution if returned to her native country.” Gao, 299 F.3d at 272. Our

review of the record fails to reveal that Lin had “a subjective fear of persecution that is

supported by objective evidence that persecution is a reasonable possibility.” Chang v.

INS, 119 F.3d 1055, 1066 (3d Cir. 1997).

       Lin also seeks withholding of removal. See 8 U.S.C. § 1231(b)(3)(A). A

petitioner’s burden in connection with a withholding claim is heavy, requiring a showing

“that it is more likely than not” that he will be subjected to persecution if removed. Yan

Lan Wu v. Ashcroft, 393 F.3d 418, 423 (3d Cir. 2005). Lin, having failed to carry his

burden in relation to his asylum claim, cannot succeed on the more difficult withholding

of removal claim.

       Finally, for purposes of his CAT claim, Lin was required to demonstrate that it is

“more likely than not he will be tortured if removed to” the PRC. Lukwago v. Ashcroft,



   4
    Furthermore, we note that when an applicant, by “a showing of past persecution,” has
successfully raised “a presumption of a well-founded fear of future persecution,” the
government can attempt to “establish[] by a preponderance of the evidence that the
applicant could reasonably avoid persecution by relocating to another part of his or her
country.” Abdulrahman, 330 F.3d at 592 & n.3. Cf. Pet.’s Form I-589, A.R. 134 (“If
returned to my hometown, my boss would continue to threaten me, victimize me, and
endanger my life in future attacks against me.”).

                                              6
329 F.3d 157, 182-83 (3d Cir. 2003).5 Although Lin includes a paragraph summarizing

the CAT standard in his brief, he fails to even suggest how he has met that standard,

apparently abandoning the argument. In any event, as the IJ found, Lin “has not given me

any evidence whatsoever that he . . . will be tortured for any reason whatsoever upon

return to China.” (A.R. 46). We agree. He is, therefore, ineligible for relief under the

CAT.

                                            IV.

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




   5
     See 8 C.F.R. § 208.18(a)(1) (“Torture is defined as any act by which severe pain or
suffering, whether physical or mental, is intentionally inflicted on a person for such
purposes as obtaining from him or her or a third person information or a confession,
punishing him or her for an act he or she or a third person has committed or is suspected
of having committed, or intimidating or coercing him or her or a third person, or for any
reason based on discrimination of any kind, when such pain or suffering is inflicted by or
at the instigation of or with the consent or acquiescence of a public official or other
person acting in an official capacity.”).

                                             7
