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


10-17-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2041




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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                     No. 04-2041
                                    ____________

                                       KAI LIN,

                                         Petitioner

                                            v.

                  UNITED STATES DEPARTMENT OF JUSTICE,
                           ALBERTO R. GONZALES,*
                       Attorney General of the United States
                                 ____________

                           On Petition for Review from an
                      Order of the Board of Immigration Appeals
                              (Board No. A77-341-294)
                                    ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                 September 22, 2005

                 Before: ROTH, McKEE and FISHER, Circuit Judges.

                               (Filed: October 17, 2005)
                                    ____________

                             OPINION OF THE COURT
                                  ____________




      *
        Attorney General Alberto R. Gonzales has been substituted for former Attorney
General John Ashcroft, the original respondent in this case, pursuant to Fed. R. App.
P. 43(c).
FISHER, Circuit Judge.

          Petitioner Kai Lin, a citizen of China, petitions for review of a decision of the

Board of Immigration Appeals (“Board”) entered March 31, 2004, affirming denial of his

applications for asylum, withholding of removal, and protection under the United Nations

Convention Against Torture (“CAT”). We will deny the petition.

                                                 I.

          Petitioner arrived in the United States on November 12, 2000, without valid

immigration documents and was immediately deemed subject to removal. The

Immigration and Naturalization Service 1 subsequently instituted removal proceedings

against him under 8 U.S.C. §§ 1182(a)(6)(C)(i) (alien seeks to procure entry by fraud or

wilful misrepresentation of material fact) and 1182 (a)(7)(A)(i)(1) (alien not in possession

of valid entry documents). Petitioner then filed applications for asylum, withholding of

removal, and protection under the CAT, citing his wife’s second pregnancy and forced

abortion and their attempts to avoid that event, and his fear that, if he returned to China,

he would be persecuted for his actions in opposition to the country’s family planning

policy.


          1
        On March 1, 2003, the INS ceased to exist as an independent agency within the
Department of Justice and its functions were transferred to the newly formed Department
of Homeland Security. See Homeland Security Act, Pub. L. No. 107-296, § 441, 116
Stat. 2135, 2192 (2002). The former INS was divided into three separate agencies:
United States Immigration and Customs Enforcement; Bureau of Customs and Border
Protection; and the United States Citizenship and Immigration Services. Joseph v.
Attorney General, 421 F.3d 224, 225 n.2 (3d Cir. 2005).

                                                 2
       Petitioner appeared before an Immigration Judge (“IJ”) on October 26, 2001.

After eliciting minimal testimony from petitioner, his counsel requested a continuance,

citing concerns with petitioner’s mental and physical capacities and noting that “what [he

has] told us today just simply doesn’t make sense.” The IJ stated on the record that he too

had observed petitioner stuttering, making “violent head jerks,” and constantly

contradicting himself. (App. at 118 (“[T]he testimony is so contradictory[;] [he] can’t

remember two minutes after he tells me one thing[] what he’s told me because he

immediately contradicts it. [I] was tempted to just cut this hearing short and . . . [order

removal] for lack of credibility, but there may be some organic problem here.”).)

Speculating that perhaps petitioner required medical attention, the IJ granted the

continuance. When petitioner subsequently appeared before him on November 4, 2002,

the IJ reviewed the reason for the continuance and asked whether petitioner had sought

medical attention. Counsel represented that, despite their urging, he had not visited a

doctor or a speech therapist; petitioner stated: “I didn’t need to see a doctor.” Before

resuming testimony, the IJ warned that, to the extent petitioner continued to contradict

himself, such would be viewed as having “nothing to do with any psychological or

medical problem.” After the hearing, the IJ denied petitioner’s applications for asylum,

withholding of removal and protection under the CAT, citing specific contradictions in

his testimony and deeming him “totally incredibl[e].” (App. at 85 (“It is obvious to the

Court that [petitioner] is making up his testimony as he is going along . . . .”).) Petitioner



                                              3
appealed and on March 31, 2004, the Board affirmed the IJ’s decision without opinion.

This petition for review followed on April 23, 2004.

       On May 10, 2004, petitioner filed a motion to reopen the Board’s decision;

attached thereto was a psychologist’s report, attempting to explain why petitioner had

contradicted himself and/or otherwise behaved oddly during the hearing. By opinion

dated September 9, 2004, the Board denied the motion to reopen, noting that the

psychologist’s report did not refer to any specific testimony and did not otherwise

establish petitioner as credible. Additionally, the Board noted that petitioner had been

given ample opportunity to submit this type of evidence to the IJ but failed to do so.

petitioner did not appeal this order.

                                             II.

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

§ 1252(a)(1). Because the BIA affirmed the IJ’s decision without opinion, we review the

decision of IJ. Zhang v. Gonzales, 405 F.3d 150, 155 (3d Cir. 2005) (citing Abdulai v.

Ashcroft, 239 F.3d 542, 549 n.2 (3d Cir.2001)).

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

credibility, by itself, may satisfy the burden, or doom the claim. Dia v. Ashcroft, 353 F.3d

228, 247 (3d Cir. 2003) (en banc). Testimony, by itself, is sufficient to meet the burden if

“credible.” Id. (quoting 8 C.F.R. § 208.13(a)). An adverse credibility determination is a

finding of fact, id., which we review under the standard found in 8 U.S.C.



                                             4
§ 1252(b)(4)(B) (“[A]dministrative findings of fact are conclusive unless any reasonable

adjudicator would be compelled to conclude to the contrary”). This standard has been

interpreted to require the finding be supported by substantial evidence. Dia, 353 F.3d at

247-48 (citing INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992)). “Substantial evidence is

more than a scintilla, and must do more than create a suspicion of the existence of the fact

to be established. It means such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” Id. at 248 (internal citation, quotation omitted). We

require that an adverse credibility determination be supported by specific and cogent

reasons for disbelief, see id. at 249, but recognize 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 the evaluation of testimonial evidence.

He is, by virtue of his acquired skill, 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) (quoting Sarvia-Quintanilla v. INS, 767 F.2d 1387, 1395 (9th Cir. 1985)).

       Pursuant to 8 U.S.C. § 1158(b)(1)(B)(iii), as amended by the REAL ID Act of

2005, Pub. L. No. 109-13, 119 Stat. 231, inconsistencies, inaccuracies, or falsehoods

identified by an IJ giving rise to an adverse credibility determination may now be made

“without regard” to whether they “go[] to the heart of the applicant's claim.” Cf. Gao v.

Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002). Rather, amended § 1158(b)(1)(B)(iii) states:

       (iii) Credibility Determination-Considering the totality of the circumstances,
       and all relevant factors, a trier of fact may base a credibility determination

                                              5
       on the demeanor, candor, or responsiveness of the applicant or witness, the
       inherent plausibility of the applicant's or witness's account, the consistency
       between the applicant's or witness's written and oral statements (whenever
       made and whether or not under oath, and considering the circumstances
       under which the statements were made), the internal consistency of each
       such statement, the consistency of such statements with other evidence of
       record (including the reports of the Department of State on country
       conditions), and any inaccuracies or falsehoods in such statements, without
       regard to whether an inconsistency, inaccuracy, or falsehood goes to the
       heart of the applicant's claim, or any other relevant factor. There is no
       presumption of credibility, however, if no adverse credibility determination
       is explicitly made, the applicant or witness shall have a rebuttable
       presumption of credibility on appeal.

8 U.S.C. § 1158(b)(1)(B)(iii).

                                             IV.

       Petitioner argues the adverse credibility determination is not supported by

substantial evidence. Specifically, he asserts that many of the inconsistencies cited by the

IJ as the basis for his decision arise not from his testimony but from the IJ’s

misunderstanding of it. Additionally, he asserts that the adverse credibility determination

was based on immaterial inconsistencies that do not detract from the cogency of

petitioner’s basic claim. We have reviewed petitioner’s arguments against the record and

conclude that there are sufficient material inconsistencies to uphold the adverse

credibility determination, and specifically to satisfy amended § 1158(b)(1)(B)(iii).

Specifically, as the IJ noted, the contradictions were rife among petitioner’s application

for asylum, his supporting affidavit, and his testimony on basic facts central to his claim

for relief, including the date of the IUD insertion, the date of his pregnant wife’s physical



                                              6
examination by local officials, the date of the abortion, and the events surrounding their

attempt to hide from local officials. This record simply would not compel a reasonable

adjudicator to reach a conclusion opposite to that reached by the IJ.

       Acknowledging, as he must, that there are many unexplained inconsistencies in the

record, petitioner next argues that, where an IJ observes behavior causing him to question

a petitioner’s competency, it is reversible error to base an adverse credibility finding on

such behavior. We cannot agree on this record. Here, the IJ granted a lengthy

continuance and warned that petitioner’s behavior would have be viewed as adversely

impacting his credibility without medical documentation to support that his behavior

stemmed from something other than untruthfulness. When the hearing resumed, the IJ

specifically inquired whether medical documentation was available, but none was

forthcoming. The psychologist’s report attached to the motion to reopen was not before

the IJ when he made the decision now under review. We lack jurisdiction to review the

Board’s denial of the motion to reopen in the absence of a separate appeal therefrom, see

Nocon v. INS, 789 F.2d 1028, 1033 (3d Cir. 1986) (stating that final deportation orders

and orders denying motions to reopen or reconsider are “independently reviewable final

orders”), and thus cannot rely on the psychologist’s report as undermining the adverse

credibility finding, see 8 U.S.C. § 1252(b)(4)(a) (“[A] court of appeals shall decide the

petition only on the administrative record on which the order of removal is based”).

       Accordingly, the petition for review will be denied.



                                              7
