                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-11-2009

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Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1596




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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      ___________

                                      No. 08-1596
                                      ___________

                                    QING XIA LIN,
                                                       Petitioner

                                            v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                          Respondent

                      ____________________________________

                       On Petition for Review of an Order of the
                             Board of Immigration Appeals
                              (Agency No. A95-710-388)
                    Immigration Judge: Honorable Frederic G. Leeds
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    June 11, 2009

               Before: BARRY, SMITH and HARDIMAN, Circuit Judges

                             (Opinion filed: June 11, 2009 )
                                      _________

                                        OPINION
                                       _________

PER CURIAM

      Qing Xia Lin petitions for review of the Board of Immigration Appeals’ (“BIA”)

January 30, 2008 order affirming the Immigration Judge’s (“IJ”) denial of her application
for asylum, withholding of removal, and relief under the Convention Against Torture

(“CAT”). For the reasons that follow, we will grant the petition and remand for further

proceedings                                 I.

       Lin, a 22-year-old native and citizen of the People’s Republic of China, entered the

United States without valid entry documents in June 2005. The Department of Homeland

Security (“DHS”) interviewed her upon her arrival and, a few days later, initiated removal

proceedings against her pursuant to 8 U.S.C. § 1182(a)(7)(A)(i)(I). Lin conceded

removability and, in August 2005, applied for asylum, withholding of removal, and relief

under the CAT.

       In a May 2006 hearing before the IJ, Lin testified that, from 2002 to 2004, she

distributed flyers in China promoting the practice of Falun Gong. According to Lin, the

Chinese police visited her home in 2004 and arrested her parents for practicing Falun

Gong. Although Lin was not in her house at the time of the arrest – she testified that, at

the time of the arrest, she was on her family’s farm, which was near the house – she

learned that the police had issued a charge against her as well. In light of these events,

she stopped attending school and hid in relatives’ homes until traveling to the United

States. She further testified that, when she telephoned her grandfather earlier in 2006, he

told her that her parents had not been released and that the police occasionally inquired

about her whereabouts.

       The IJ denied Lin’s requests for relief, concluding that her testimony lacked



                                                 2
credibility because of discrepancies between Lin’s statements during the DHS interview

and her hearing testimony. In January 2008, the BIA affirmed the IJ’s decision “insofar

as he denied the respondent’s applications for asylum, withholding of removal, and

protection under the Convention Against Torture.” BIA Order at 1. The BIA’s decision

further stated that

              [t]he respondent’s claim is based upon her assertion that she
              distributed Falun Gong flyers in China and that her parents
              were arrested and released because they were practitioners.
              The respondent herself was never harmed, arrested, detained,
              or interrogated on account of Falun Gong in China. Although
              we accept the truth of the respondent’s assertion that she
              presently practices Falun Gong in the United States, we
              conclude in the circumstances that she is unable to
              demonstrate either past persecution or a well-founded fear of
              future persecution to qualify for asylum, or to satisfy the
              higher burden of proof for withholding of removal. In
              addition, we find no support in the record that the respondent
              has been or would likely be tortured by or with the
              acquiescence of a government official, and therefore she is
              not eligible for protection under the Convention Against
              Torture. Therefore, we are unable to determine that the
              Immigration Judge’s findings of fact were clearly erroneous.

Id. (citations omitted). Lin now petitions this Court to review the BIA’s decision.

                                            II.

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

§ 1252. To conduct this review, we must have sufficient insight into the reasoning

underlying the BIA’s decision. Awolesi v. Ashcroft, 341 F.3d 227, 232 (3d Cir. 2003).

In this case, however, the BIA’s decision fails to provide this necessary insight.



                                              3
        Although the IJ’s decision turned solely on Lin’s lack of credibility, the BIA did

not expressly indicate whether it agreed with this adverse credibility determination. It

may be noteworthy that the BIA affirmed only insofar as the IJ denied Lin’s requested

relief. One might interpret this holding to mean that the BIA implicitly rejected some or

all of the basis for the IJ’s denial. Indeed, the BIA stated that it believed Lin’s assertion

that she practiced Falun Gong in the United States. Yet the BIA also concluded that the

IJ’s factual findings were not clearly erroneous, a holding that does not imply a rejection

of the IJ’s adverse credibility determination.1

       To further complicate matters, it appears that the BIA might have considered Lin’s

claim at face value and rejected it on the merits. Indeed, the BIA, noting that Lin “was

never harmed, arrested, detained, or interrogated,” stated that she had failed to

demonstrate past persecution, a well-founded fear of future persecution, or likely torture

under the CAT. Yet if the BIA did intend to affirm on this basis, it must further explain

its reasoning for doing so. That is, if the BIA believed Lin’s account that she was forced

to flee from her home in the wake of her parents’ arrest to avoid being arrested herself, it

must explain why these circumstances do not demonstrate a well-founded fear of future

persecution – especially given that Lin claimed that her parents remained in custody and



       1
          In the second paragraph of its decision, the BIA noted that, although Lin’s claim
was governed by the REAL ID Act of 2005, her argument that the IJ erred was based
primarily on pre-REAL ID Act authority and cases outside of this Circuit. Although this
portion of the BIA’s decision may suggest that the BIA was analyzing the IJ’s adverse
credibility determination, the BIA’s conclusion on this issue remains unclear.

                                               4
that the police continued to inquire about her whereabouts, points that the BIA did not

address in its decision.2 See Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993) (stating that

“persecution” includes confinement).

       Despite our best efforts to interpret the BIA’s decision, we cannot confidently

identify the precise basis on which the BIA affirmed the IJ’s ruling. Moreover, the

parties appear to disagree as to the basis of the BIA’s affirmance.3 “When deficiencies in

the BIA’s decision make it impossible for us to meaningfully review its decision, we must

vacate the decision and remand so that the BIA can further explain its reasoning.”

Kayembe v. Ashcroft, 334 F.3d 231, 238 (3d Cir. 2003). Accordingly, we will grant

Lin’s petition for review and remand the matter to the BIA for further proceedings.




       2
        In fact, the BIA’s decision stated, incorrectly, that Lin asserted that her parents
had been released from custody.
       3
         Lin contends that the BIA declined to adopt the IJ’s adverse credibility finding
and rejected her claim on the merits, whereas the Government maintains that the BIA
affirmed the IJ’s adverse credibility finding.
                                            5.
