                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-10-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1571




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                                                                 NOT PRECEDENTIAL

        UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT




                                      No. 06-1571




                                    SHU FANG LIN,
                                               Petitioner

                                           v.

                  ATTORNEY GENERAL OF THE UNITED STATES,
                                        Respondent




                          On Petition for Review of an Order
                         of the Board of Immigration Appeals
                                  (No. A97-744-833)
                      Immigration Judge: Hon. Alberto J. Riefkohl




                      Submitted Under Third Circuit LAR 34.1(a)
                                   March 9, 2007

                   Before: SLOVITER and AMBRO, Circuit Judges,
                              POLLAK,* District Judge

                             (Opinion filed April 10, 2007)


                                        OPINION



   *
    Hon. Louis H. Pollak, Senior Judge, United States District Court for the Eastern
District of Pennsylvania, sitting by designation.
POLLAK, District Judge

       Shu Fang Lin petitions for review of a Board of Immigration Appeals (BIA)

decision adopting and affirming an order of an Immigration Judge (IJ) that denied her

applications for asylum and withholding of removal. We will deny the petition.

                          I. Factual and Procedural Background

       Because we write primarily for the parties, we summarize only the essential facts.

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

the United States without inspection on or about January 14, 2004. In a motion filed with

the Immigration Court on February 13, 2004, she admitted these allegations, establishing

the basis for her removability. A.R. 155.

       Lin petitioned for asylum and withholding of removal based on persecution she

allegedly suffered as a result of her practice of Falun Gong. At an evidentiary hearing

before the IJ on December 6, 2004, Lin testified that she began to practice Falun Gong in

May of 2003 and, shortly thereafter, started to distribute informational flyers about the

organization. She further testified that, on September 25, 2003, the police caught her

distributing flyers, arrested her, and took her into custody. According to Lin, she was

released three days later, after her parents paid money to the authorities and she signed a

statement agreeing to stop practicing Falun Gong. In addition to her testimony, Lin

presented the IJ with her resident identification card, household registration documents

for her family, and a copy of her Application for Asylum and for Withholding of Removal



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form (“I-589”). After considering Lin’s evidence, the IJ concluded that she had

“deliberately . . . lied to the Court, both in her written application and in her oral

testimony.” A.R. 45. Accordingly, the IJ denied her petition for relief. The BIA

determined that the “record supports the Immigration Judge’s finding” and, accordingly,

affirmed. Id. at 3.

                                        II. Discussion

       We review the BIA’s decision pursuant to 8 U.S.C. § 1252(a)(1). Because the BIA

substantially relied upon the adverse credibility finding of the IJ, we also review the IJ’s

opinion. Shah v. Att’y Gen., 446 F.3d 429, 434 (3d Cir. 2006). Adverse credibility

determinations are reviewed for substantial evidence. Gao v. Ashcroft, 299 F.3d 266, 272

(3d Cir. 2002). Under this standard, we will uphold the adverse credibility determinations

made by the IJ and BIA unless “any reasonable adjudicator would be compelled to

conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).

       In upholding the IJ’s adverse credibility determination, the BIA observed that the

IJ’s finding “was based on at least five incidents of inconsistency in [Lin’s] submitted

evidence, her demeanor, and a finding of implausibility.” A.R. 3. As the IJ noted, “in her

oral testimony, [Lin] has deviated quite often from” the statements she made in her

application for asylum. Id. at 39. For example, Lin’s asylum application stated that,

following the September 25, 2003 incident, Lin had been dismissed from the factory

where she was working and could not find another job after that. Id. at 105 (asylum



                                               3
application). However, at the December 6, 2004 hearing, Lin first testified that she had

quit work voluntarily in 2002, id. at 75, 88; but then, in answer to the IJ’s question about

the statement she made in her asylum application, reiterated her claim that she had been

dismissed from work after the police notified her employer of her arrest, id. at 89-90. The

IJ also noted several other inconsistencies in Lin’s testimony at the December 6, 2004

hearing. For instance, Lin at first testified that she had, in July of 2004, asked her parents

for a statement indicating that they had paid money to have her released from jail, id. at

71, and that her parents told her they had sent such a statement to her, id. at 73. However,

in answer to the IJ’s question about why this letter did not arrive along with the other

documents that Lin’s family had sent from China, Lin stated that she had asked her

parents for such a letter but “[t]hey said that they didn’t know how to write it.” Id. at 92.

         We have previously observed that an IJ may base an adverse credibility finding on

inconsistencies in the applicant’s testimony if those discrepancies “involve the heart of

the asylum claim.” Gao, 299 F.3d at 272 (internal quotation marks omitted). Because the

September 25, 2003 arrest and detention constitute the only specific incident of

persecution that Lin has presented in support of her asylum claim, the inconsistencies in

Lin’s testimony about (1) the consequences of her arrest and (2) her attempts to obtain

corroborating evidence from her parents would seem to go to the heart of Lin’s asylum

claim.

         We also note the IJ’s comment that Lin “has given the impression to the Court that



                                               4
she is adjusting her communications with the Court as the questions are being posed to

her.” Id. at 39. We have previously observed that adverse credibility findings based on an

asylum petitioner’s demeanor are entitled to “an even greater degree of deference” than

those based on discrepancies in the record, Dia v. Ashcroft, 353 F.3d 228, 252 & n.23 (3d

Cir. 2003) (en banc), given that “an Immigration Judge is in the unique position to

observe the testimony of an alien,” id. at 253 n.23 (citing In re A-S- (Interim Decision),

21 I. & N. Dec. 1106, 1998 WL 99553 (BIA 1998)). During the course of the December

6, 2004 hearing, the IJ commented at several points that Lin seemed to be giving non-

spontaneous answers. See, e.g., A.R. 78 (noting that Lin “thinks a lot between

questions”); id. at 79-80 (same); id. 90 (noting, for comparison, when Lin’s testimony

seemed “spontaneous”). Accordingly, the IJ concluded that, “[i]n general, [Lin] has

demonstrated a tendency of extreme hesitation between the questions which has prompted

the Court to raise serious doubts as to whether the statements provided to the Court are

accurate or not.” Id. at 43.

       In view of the inconsistencies in Lin’s evidence and her demeanor before the

Immigration Court, a reasonable adjudicator could well find that Lin was not a credible

witness. Accordingly, we conclude that the BIA and IJ’s adverse credibility

determinations were supported by substantial evidence. We will therefore deny the

petition for review.



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