                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-13-2003

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Precedential or Non-Precedential: Non-Precedential

Docket No. 02-3699




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                                                     NOT PRECEDENTIAL

             UNITED STATES COURT OF APPEALS
                  FOR THE THIRD CIRCUIT


                             No. 02-3699




                          ZHEN XIUNG LIN,
                                       Petitioner

                                 v.

                       JOHN ASHCROFT,
               Attorney Generalof the United States,
                                               Respondent




             On Petition for Review of an Order of the
                 Board of Immigration Appeals
                      (BIA No. A77-281-535)




          Submitted Pursuant to Third Circuit LAR 34.1(a)
                        October 27, 2003

Before: SCIRICA, Chief Judge, NYGAARD and AMBRO Circuit Judges

                 (Filed        November 13, 2003 )




                   OPINION OF THE COURT
SCIRICA, Chief Judge.

       Petitioner Zhen Xiung Lin seeks review of an immigration judge’s decision

denying relief on asylum, withholding of removal, and Convention Against Torture

(“CAT”) claims, which the Board of Immigration (“BIA”) summarily affirmed.1

Petitioner alleges that the immigration judge’s findings are not based upon substantial

evidence. As we find no error, we will affirm the judgment and deny the request for a

remand.

                                             I.

       Lin, a citizen of the People’s Republic of China, entered the United States on

August 22, 1999 without a valid visa. On that day, Lin swore statements before an INS

officer at the airport that he left “China because [he was] one of four children.” On

September 9, 1999, Lin, with the assistance of counsel, participated in a Credible Fear

Interview. Lin expressed his fear that he would be persecuted in China for his

homosexual activity. He claimed his village wanted to arrest, torture, detain, and beat

him. When questioned, Lin admitted he had encountered no problems with the police,

military, or authorities; had never been arrested, detained, or questioned by them; and did




   1
    The BIA has jurisdiction under 8 C.F.R. § 1003.1(b)(3), which grants it appellate
jurisdiction over immigration judge decisions in removal proceedings. We have
jurisdiction under the Immigration and Nationality Act, 8 U.S.C. § 1252, which provides
the exclusive procedure for judicial review of all final removal orders. Venue is proper in
the Third Circuit because Lin’s removal proceedings were completed in Newark, New
Jersey. See id. at § 1252(b)(2).

                                             2
not fear being harmed by them. Lin stated that he had tried to move to another village but

felt unsafe there.

       In an asylum application dated February 17, 2000, Lin submitted he was seeking

asylum because he was persecuted by the Chinese government for being homosexual. He

claimed the police threatened to detain him and shocked his genitals in an attempt to

make him heterosexual. In a statement in support of his application, Lin related that he

and his boyfriend, Ling Xian Yo, had been discovered by the police during an intimate

moment in the park, and the police tortured, detained, and threatened them for their

conduct. Lin also explained that he could not flee internally within China because if he

were caught, he would be returned to his village.

       On May 26, 2000, Lin testified at a hearing before Immigration Judge Eugene

Pugliese. Lin recounted how the police tortured, detained, and threatened him because of

his homosexuality. He testified that he did not flee internally within China because he

lacked proper documents. When asked about his statements at the airport, Lin testified

that he did not inform the INS officer that he had been persecuted due to his

homosexuality because he was “shy” and “fearful.” 2




   2
    The record includes the State Department’s Profile of Asylum Claims and Country
Conditions which details how China has become more tolerant of homosexuals and how
authorities have been instructed to no longer punish homosexuals. The Profile also
explains how “internal flight in China is more of a possibility now than previously” with a
“floating population” of 10 to 100 million evading “resident-based controls.”

                                             3
                                             II.

       On M ay 26, 2000, the immigration judge issued an oral decision denying Lin’s

claims for asylum, withholding of removal, and relief under the CAT. The judge

concluded that Lin’s testimony was insufficient to satisfy his burden of proof because his

testimony lacked “credibility.” As a basis for the credibility determination, the judge

commented on the degree to which Lin’s story was “embellished” during repeated

retelling. The judge observed that in sworn statements in an interview at the airport, Lin

made no mention of homosexuality or of past torture, arrests, or detentions. It was not

until the Credible Fear Interview that Lin proffered a claim of asylum based on

homosexual persecution. The judge stressed that Lin stated three times that he had not

been mistreated by authorities; instead, Lin claimed the villagers wanted to arrest and beat

him. The judge found Lin’s asylum application “looks like it had been written [at] two

different times,” noting that the one portion states police had “threatened” to detain him

whereas another portion states he had already been detained two weeks. The judge also

found Lin’s demeanor unconvincing due to his “hesitation” and “feigned inability to

respond to questions.” 3 For those reasons, the judge concluded Lin was not entitled to




   3
    The judge also held that Lin had not shown that homosexuals were a persecuted group
in China. In his analysis, the judge found that the State Department Profile did not
establish a prima facie case for a pattern or practice of persecution against homosexuals
in China. Addressing Lin’s contention that he could not relocate, the judge also observed
that the Profile reported that millions have relocated in China without permission.

                                             4
relief. The BIA affirmed the immigration judge’s order without opinion. Lin now

appeals and asks this Court to remand the matter to the BIA for further proceedings.

                                             III.

       To be granted asylum as a refugee, an applicant must establish that he is unable to

return his homeland “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.” 4 8 U.S.C. § 1101(a)(42). Whether an applicant has demonstrated “persecution”

or a “well-founded fear of persecution” is a factual determination reviewed under the

substantial evidence standard. Abdille v. Ashcroft, 242 F.3d 477, 483 (3d Cir. 2001). The

Court will uphold findings of fact to the extent they are “supported by reasonable,

substantial, and probative evidence on the record considered as a whole.”

Balasubramanrim v. INS, 143 F.3d 157, 161 (3d Cir. 1998). Similarly, adverse credibility

determinations are also reviewed for substantial evidence. Id. The Court must sustain an

adverse credibility determination if there is substantial evidence in the record to support

it. Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002).

       Under the substantial evidence standard, an immigration judge’s determination

will be upheld on review unless “any reasonable adjudicator would be compelled to

conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); accord INS v. Elias-Zacarias, 502




   4
   An applicant carries the burden of supporting his claim that he is a refugee who
qualifies for asylum. 8 C.F.R. § 208.13(a).

                                              5
U.S. 478, 483-84 (1992) (A petitioner “must show that the evidence he presented was so

compelling that no reasonable factfinder could fail” to find otherwise.). An immigration

judge must state specific reasons for his credibility determination, and the Court must

evaluate those reasons “to determine whether they are valid grounds upon which to base a

finding that asylum applicant is not credible.” Balasubramanrim, 143 F.3d at 162

(internal quotation marks omitted). Additionally, “[t]he reasons must be substantial and

bear a legitimate nexus to the finding.” Gao, 299 F.3d at 276.

       Here, substantial evidence supports the immigration judge’s determination that Lin

failed to support his asylum claim with credible evidence.5 The judge provided “specific,

cogent reasons” that are valid grounds for doubting Lin’s testimony. The judge noted that

Lin failed to mention homosexuality, detention, or torture in his sworn interview with the

INS.6 The judge further observed that while under oath at the Credible Fear Interview,

Lin stated three times that the authorities had not harassed him. The judge explained that

Lin’s asylum application “look[ed] like it had been written two different times” because

   5
    Though we ordinarily review decisions of the BIA as opposed to that of an
immigration judge, Abdulai v. Ashcroft, 239 F.3d 542, 548-49 (3d Cir. 2001), in this case,
the BIA summarily affirmed the decision, so the immigration judge’s decision constitutes
the “final agency determination,” and is therefore the decision under review. 8 C.F.R. §
1003.1(a)(7)(iii) (2003).
   6
    Petitioner relies on Balasubramanrim, 143 F.3d 157, in which this Court held that a
credibility determination by the BIA “was not reasonable because the airport interview
alone . . . does not serve as a valid ground upon which to base a finding that an asylum
applicant is not credible.” Id. at 164 (internal quotation marks omitted). Here, however,
the credibility determination does not rest solely on an airport interview, but also upon the
Credible Fear Interview where Lin was represented by counsel.

                                              6
there were internal contradictions. The judge also remarked upon Lin’s demeanor, noting

his “feigned inability to respond” and “his hesitation.” Because of Lin’s contradictions

and inconsistencies, the evidence presented by Lin would not compel any reasonable

factfinder to find that his claims were credible. The immigration judge’s findings

regarding Lin’s asylum claim are supported by substantial evidence.

       Lin’s request for withholding of removal also fails. Since the asylum standard is

more lenient than the withholding standard, failure to establish eligibility for asylum

forecloses eligibility for withholding of removal. Ghaly v. INS, 58 F.3d 1425, 1429 (9th

Cir. 1995). Similarly, Lin’s claim for relief under the CAT fails because he must

establish that it is “more likely than not” that he would be tortured if deported. 8 C.F.R. §

208.16(c)(2). Given the inconsistencies and contradictions detailed above, the

immigration judge’s conclusion that Lin did not meet this burden is supported by

substantial evidence.7

                                             IV.

       For the foregoing reasons, we will affirm the BIA’s Order.




   7
    Petitioner also criticizes the immigration judge’s “reading” of the State Department
Profile in assessing the substantive merits of Lin’s claims. The judge relied on the Profile
to conclude there was no pattern or practice of homosexual persecution in China. We
find no error in his reasonable interpretation of this relevant document.

                                              7
TO THE CLERK:

         Please file the foregoing opinion.




                                              /s/ Anthony J. Scirica
                                                   Chief Judge




                                        8
