Lin v. Holder, Jr., No. 12-2302 (4th Cir. 2013)
Annotate this Case
Justia Opinion Summary
Want to stay in the know about new opinions from the Fourth Circuit US Court of Appeals?
Sign up for free summaries delivered directly to your inbox. Learn More ›
You already receive new opinion summaries from Fourth Circuit US Court of Appeals. Did you know we offer summary newsletters for even more practice areas and jurisdictions? Explore them here.
Petitioner, a native and citizen of China, petitioned for review of the BIA's order dismissing her appeal from the IJ's order finding her ineligible for asylum, withholding of removal, or deferral of removal under the Convention Against Torture (CAT). The IJ determined that petitioner's testimony was not credible and that she had not provided sufficient evidence to prove that she was the victim of a forced abortion. The BIA agreed with the IJ's decision in all pertinent parts. The court concluded that the agency's finding was supported by substantial evidence and was not manifestly contrary to law. Therefore, the court affirmed the denial of petitioner's claim for asylum and for protection under the CAT. Petitioner also failed to meet the more stringent burden of proof required to qualify for withholding of removal. Further, the court concluded that petitioner's argument, that her due process rights were violated by the IJ's decision allowing the government to submit supplemental evidence after the merits hearing, was without merit. Accordingly, the court denied the petition for review.
Download PDF
PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-2302 QING HUA LIN, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Argued: September 18, 2013 Decided: November 22, 2013 Before GREGORY and THACKER, Circuit Judges, and HAMILTON, Senior Circuit Judge. Petition denied by published opinion. Judge Gregory wrote the opinion, in which Judge Thacker and Senior Judge Hamilton joined. Judge Thacker wrote a separate concurring opinion. ARGUED: Joshua E. Bardavid, BARDAVID LAW, New York, New York, for Petitioner. Jonathan Aaron Robbins, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Stuart F. Delery, Principal Deputy Assistant Attorney General, Ernesto H. Molina, Jr., Assistant Director, S. Nicole Nardone, Civil Division, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. GREGORY, Circuit Judge: Qing Hua Lin petitions this Court for review of an order of the Board of Immigration Appeals ( Board ) dismissing her appeal from the Immigration Judge s ( IJ ) order finding that she was not eligible for asylum, withholding of removal, or deferral of removal under the Convention Against Torture ( CAT ). For the reasons stated below, we deny Lin s petition for review. I. A. Lin is a native citizen of the People s Republic of China ( China ). She illegally entered Hidalgo, Texas on August 19, 2009. Department of Homeland Security the United States near On October 6, 2009, the commenced removal proceedings against Lin by issuing a notice to appear, charging her with removability under § 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(7)(A)(i)(I), as an alien who, at the time of application for admission to the United States, was not in possession of valid entry documents. then sought relief from removal in the form of withholding of removal, and protection under the CAT. Lin asylum, JA 535. Following several hearings, the IJ issued an order and written opinion denying Lin s application and ordering her removed to 2 China. JA 50-65. Lin appealed to the Board, which affirmed the decision of the IJ. The Lin then timely appealed to this Court. disposition discrepancies of between this Petitioner s stages of the asylum process. relevant testimony case and turns primarily statements at on different Accordingly, we detail below the materials from Lin s interviews, hearings, and written application for asylum. Border Patrol Interview, August 20, 2009 Lin was interviewed by a Border Patrol Agent immediately upon being apprehended entering the country (the Border Patrol interview or interview ). During the interview, Lin stated that she was not married and that she had one child. JA 233. When asked what her purpose was for entering the United States, she responded China. [t]o JA 229. avoid population control regulations in When asked whether she feared persecution if sent back to China, she indicated that she planned to have more children, and that she would be forced to have an abortion or undergo a tubal ligation if she became pregnant again. JA 235. She also stated that she feared she would be unable to get married if she was sterilized. Id. Finally, Lin explained that because she had given birth out of wedlock, which is seen as anti-cultural in China, she instructed her son to refer to her as Auntie. Id. 3 Credible Fear Hearing, September 18, 2009 By this time Lin had retained an attorney. JA 572. During the hearing, and in contrast to the Border Patrol interview, Lin stated that she was married to a man named Dehua Jiang, who continued to reside in China with their son. JA 573. Notably, she also stated that she left China because she had been forced to undergo an unwanted abortion on January 24, 2008. This fact was interview. not mentioned during Lin s JA 574. Border Patrol Following the abortion, her husband went into hiding for fear that he would be sterilized and he encouraged Lin to seek refuge in the United States. JA 575. Asylum Application and Supporting Documents On April 28, 2010, Lin submitted an application for asylum and a written statement. The statement married Jiang on September 8, 2004. provided JA 246. that Lin In 2005, four months after the birth of her son, family planning officials from the Chinese government forced Lin to have an IUD implanted and submit to regular gynecological checkups. statement also discussed the 2008 forced abortion. Id. The Id. In support of her asylum application, Lin also submitted several documents: an abortion certificate from the First Hospital of Fuzhou, a notice from Yang Zhong Village committee requesting that Lin appear for an IUD and pregnancy checkup, and a notice from Yang Zhong Village Committee notifying Lin that 4 she had violated the family planning regulations and fining her 10,000 yuan. JA 273-80. Lin also submitted a statement from her mother-in-law, providing that Lin and her son were married in 2004. JA 285. Her mother-in-law described Lin s forced abortion and how family planning officials continue to visit her house on a regular basis looking for Lin and her husband. JA 285. He Finally, Lin submitted a statement from her husband. provided that the two were married in September 2004 and that the marriage was permitted and blessed. JA 294. He also recounted the circumstances of Lin s forced abortion and the couple s decision that she seek refuge in the United States. JA 294-95. State Department Report on China The States government Department policies. submitted of JA 26-27. State a on 2007 report China s from the population United control The report stated that the policies were no longer strictly enforced and that there have been few reports of forced abortions or sterilizations in Fujian Province over the last twenty years. Id. First Merits Hearing, August 31, 2010 Lin gave the following testimony in support of her asylum claim before an IJ on August 31, 2010: Lin married Jiang on September 8, 2004. child, a son, was born on March 23, 2005. 5 JA 101. JA 102. Their only Four months after his birth, family planning officials came to her home and took her to a birth control office to insert an IUD. JA 103-04. Lin was instructed that she would have to attend seasonal checkups to ensure the IUD remained inserted and that she had not become pregnant again. JA 103. On January 24, 2008, after learning that Lin was pregnant again, 1 five family planning officials came to Lin s rented house in Fuzhou City, forced her into a van, and performed an unwanted abortion on her at a local hospital. JA 109-12. After the procedure, she was told that she would have to pay a 10,000 yuan fine, and that if she did not her husband would be arrested and forcibly sterilized. JA 112. When asked by the IJ whether she was given any documentation regarding the abortion, Lin stated that originally she was not, but a few days after the procedure she returned to the hospital and requested an abortion certificate. JA 113. When asked why she requested the document, she first stated that she wanted to have proof for the future, and because she assumed that America has . . . human rights, and I think that certificate will be useful in the future. JA 114. The IJ then asked her whether she was already planning to come to America, and she 1 Lin and her husband hired a private doctor to secretly remove her IUD to allow her to become pregnant again. JA 294. 6 stated not yet . . . I just assumed that this certificate would be useful to questioning, me Lin in the then future. changed her JA 115. answer, Under stating further that she requested the document so she could take a vacation from work. Id. When the IJ noted that Lin was self-employed, she changed her answer once again, stating that she was in fact planning on applying for asylum in the United States at the time she requested the documentation and thought it would be helpful for that purpose. JA 116-117. Status Conference and Submission of Additional Government Evidence, November 16, 2010 The IJ held a status conference in the matter on November 16, 2010. At the hearing, the government requested that the court consider additional evidence that was part of Lin s file but had not been discovered by the government s attorneys until after the close of evidence. JA 175. The additional evidence consisted of the recorded notes from Lin s September 20, 2009 Border Patrol interview. Id. Over Petitioner s objection, the IJ decided to accept the evidence and hold a second evidentiary hearing so the parties would have an opportunity to address the new evidence. Id. Second Merits Hearing, January 31, 2011 At Border the second Patrol Agent hearing, Lin was during the interview 7 asked why that she she told the was not married. Lin responded, [i]n our village, our practice is, if you did not have the, you know, banquet, if you did not have the Chinese ceremony, you really [are not] consider[ed] married. Id. When asked why she responded differently at the credible fear hearing, she said that her attorney had told her in the interim that in the United States if you are registered at the court . . . you are considered as married. JA 181. In essence, Lin blamed the contradictory testimony on a cultural misunderstanding. Lin conceded, however, that she registered her marriage with the Chinese government in 2004. JA 186. Lin was also questioned why she did not mention the forced abortion during the Border Patrol interview. In vague and non- responsive answers, she indicated that the Agent conducting the interview told her not to provide details of her claim and that she could tell her full story to a judge later. JA 193-95. She also stated that she did not think there was room on the Agent s form to record detailed answers. JA 193. B. On March 1, 2011, the IJ issued a decision denying Lin s applications for asylum, withholding of removal, and protection under the CAT, and ordered her removed to China. IJ found Lin not implausibilities, application, and credible and her in light of contradictions in her during the statements 8 the JA 50-65. The inconsistencies, testimony, Border her Patrol interview. JA 61. The IJ also found that Lin s attempts to explain the inconsistencies and omissions were vague[], nonresponsive[][,] and did not provide credible explanations. Id. Specifically, the IJ noted that Lin told the Border Patrol Agent that she was not married and: [S]he was afraid that she would be forced to have an abortion or tubule [sic] ligation and that if she were forced to have a tubule [sic] ligation, she was afraid that she would never be able to get married. Despite discussing her fear of a future forced abortion, [Lin] did not tell the border patrol officer that she had previously had a forced abortion. In marked contrast, [Lin] testified in Court that she was already married and had been forced to have an abortion. JA 61. The IJ found Lin s explanations for the inconsistencies wholly inadequate and incredible. Lin s cultural misunderstanding Id. The IJ noted that explanation regarding her marital status was undermined by the fact that during her first hearing she repeatedly testified that she was married, and only after she was confronted with her inconsistent testimony did she manufacture[] her explanation. Lin s husband s permitted JA 62. referring blessed and affidavit undercut The IJ also found that to their Lin s marriage claim of as a misunderstanding. Of even greater significance to the IJ, however, was Lin s failure to mention her forced abortion during her Border Patrol interview. Id. The IJ explained: 9 Lin attempted to blame the omission on the border patrol officer rushing her. [Lin] was repeatedly evasive and unresponsive when asked directly whether she told the border patrol officer that she had a forced abortion. Only after being asked repeatedly did [Lin] admit that she did not tell the border patrol officer about her alleged forced abortion. [Lin] attempted to explain that she wanted to tell the officer about the abortion, but he told her that there was no space for details and to tell the judge. The Court finds this explanation entirely incredible. The alleged forced abortion is not a detail, but rather is the crux of [Lin s] entire asylum claim. . . . It is wholly implausible, therefore, that [Lin] would not have mentioned an experience as pivotal and traumatic as a forced abortion, when she had sufficient opportunity to describe other details about her alleged fear of returning to China. Id. The IJ abortion noted even credibility also before came to that he the light. had reservations omission Id. about the regarding Specifically, the Lin s forced IJ found implausible Lin s explanations for why she obtained the abortion certificate. JA 63. The IJ noted that Lin changed her testimony on this issue several times, first stating that she requested the certificate because she knew the United States protected human rights, then stating she needed it in order to take a vacation, and then finally reverting back to her original position. Id. 2 2 The IJ also mentioned two additional areas of concern with Lin s testimony. First, the IJ thought Lin s statements regarding where she and her husband lived to be confused and inconsistent. Id. According to the IJ, Lin first testified (Continued) 10 Given these inconsistencies, the IJ determined that Lin s testimony was credibility not credible. determination JA can 64. be Noting overcome that if an the adverse alien can independently prove past persecution, the IJ determined that Lin had not provided sufficient evidence to prove she was the victim of a forced abortion. Id. The IJ discredited the abortion certificate as unauthenticated and suspect in light of Lin s testimony, and noted the State Department s report that population controls are no longer strictly enforced in China. Id. Accordingly, the IJ denied all of Lin s claims. The Board agreed with the IJ s decision in all pertinent parts and adopted its decision denying Lin s claims. JA 3-4. It held that the IJ provided specific and cogent reasons for that they moved to Fuzhou City and rented a room there in July 2007 in order to secretly remove her IUD and have another child. Id. On her asylum application, however, she listed her address as Fuzhou City beginning in 2004. Id. Lin testified to the court that up until 2007 she actually lived with her parents in Ming Ho County, and her husband would sometimes visit her there. Id. The IJ stated that he found Lin s testimony about her residence to be difficult to follow and generally inconsistent. Although not a significant inconsistency in [her] testimony, her changing account of where she and her husband lived further undermines her general credibility. Id. Secondly, the IJ thought it noteworthy that Lin did not provide a letter from her parents to corroborate her testimony that family planning authorities visited their home every few days looking for her. Id. The IJ found the lack of corroboration unreasonable given Lin s testimony that she remains in regular contact with her parents. Id. 11 the adverse credibility determination, concerns with Lin s testimony. JA 3. repeating the IJ s The Board also agreed that Lin failed to provide independent evidence proving that she suffered past persecution. rejected Lin s argument government process to rights. submit JA that 4. the additional Id. The Additionally, IJ s decision evidence Board noted the allowing violated that Board IJs the her due have the authority to set and extend deadlines and that Lin was given an opportunity to respond to the new evidence. Id. II. A. Where the Board affirms and adopts the IJ s decision, we review both decisions as the final agency action. Holder, 592 F.3d 594, 600 (4th Cir. 2010). uphold the agency s determination unless Marynenka v. We are obliged to is manifestly contrary to the law and an abuse of discretion. Lizama v. Holder, 629 F.3d 440, 444 (4th Cir. 2011). it The agency abuses its discretion if it fail[s] to offer a reasoned explanation for its decision, or if it distort[s] or disregard[s] important aspects of the applicant s claim. 710, 719 (4th Cir. 2011). only to ensure Marynenka, 592 they F.3d are at Tassi v. Holder, 660 F.3d Factual determinations are reviewed supported 600. by substantial Substantial 12 evidence evidence. exists to support a finding unless the evidence . . . was such that any reasonable adjudicator would have been compelled to conclude to the contrary. Id. Review of the agency s overall conclusion that an applicant is ineligible for asylum is similarly limited to whether the applicant s evidence was such that a reasonable factfinder would have to conclude that the requisite fear of persecution existed. (1992). INS v. Elias-Zacarias, 502 U.S. 478, 481 This standard is very deferential, and does not permit a re-weighing of the evidence. 505, 511 (4th Cir. support two results: petitioner] advances, 2007) See Niang v. Gonzales, 492 F.3d ( [If] the record plausibly could the one the IJ chose and the one [the reversal is only appropriate where the court find[s] that the evidence not only supports [the opposite] conclusion, but compels it. ) (quoting Balogun v. Ashcroft, 374 F.3d 492, 507 (7th Cir. 2004)) (internal quotation marks omitted). B. The INA vests in the Attorney General the discretionary power to grant asylum to aliens who qualify as refugees. Dankam v. Gonzales, 495 F.3d 113, 115 (4th Cir. 2007). A refugee is someone who is unable or unwilling to return to his native country because of persecution or a well-founded fear of persecution on account of . . . political opinion or other protected grounds. Id. 13 (quoting 8 U.S.C. § 1101(a)(42)(A)). of proving that Asylum applicants may satisfy their burden they meet the definition of a refugee by showing either that [they were] subjected to past persecution or that [they have] a well-founded fear of future persecution on account of race, religion, nationality, membership particular social group, or political opinion. F.3d at 600 (quoting 8 C.F.R. § 208.13(b)(1)). forced to undergo an abortion or in a Marynenka, 592 A person who was sterilization shall be deemed to have a well-founded fear of persecution on account of political opinion. 8 U.S.C. § 1101(a)(42). Aliens face a heightened burden of proof to qualify for withholding of removal. must establish persecution clear probability from removal an alien suffer Id. protection If would heightened burden, withholding of removal is mandatory. seeks Id. she this also repatriated. that The alien meets Lin if a Dankam, 495 F.3d at 115. under the CAT, which requires aliens to demonstrate that it is more likely than not that [they] would be tortured if removed to the proposed country of removal, regardless of the grounds for the torture. Id. III. A. Lin support first the contends agency s that substantial adverse 14 evidence credibility does not determination. Applicants can establish their eligibility for asylum simply by providing credible Marynenka, 592 testimony F.3d at 601 about (citing 8 their experiences. C.F.R. § 208.13(a)). Review of an adverse credibility determination is limited to ensuring that substantial Dankam, 495 F.3d at 119. evidence absolute, reasons for for the making agency an to support This deference, however, is must adverse provide specific, credibility evidence that and omissions, inherently inconsistencies, improbable testimony cogent determination. Djadjou v. Holder, 662 F.3d 265, 273 (4th Cir. 2011). recognized it. We accord broad deference to the agency s credibility determination. not exists We have contradictory are appropriate bases for making an adverse credibility determination. Id. Even can the existence of only a few such inconsistencies support an adverse credibility determination. Id. Following passage of the REAL ID Act of 2005, an inconsistency can serve as a basis for an adverse credibility determination without regard to whether [it] goes to the heart of the applicant s claim. 8 U.S.C. § 1158(b)(1)(B)(iii). As recounted above, the agency gave multiple reasons for the adverse however, credibility were the determination. inconsistencies Chief between among Lin s them, statements during the Border Patrol interview and her later testimony and application materials. Lin gave 15 shifting, contradictory accounts of her marital status and omitted any mention of her forced abortion. agency that sufficient After reviewing the record, we agree with the these omissions justification for and the inconsistencies adverse provide credibility determination. The foundation of Lin s claim is that she was subjected to a forced abortion; however, when interviewed upon entering the country, she failed to mention the incident at all. highly skeptical of such an important omission. We are As the agency noted, the forced abortion is not a detail, but rather is the very heart of Lin s claim for asylum. The traumatic details of the incident as later described by Lin, including being forced into a van and whisked away to the hospital, make it wholly implausible that she would fail to even mention the incident during the interview. See Xiao v. Mukasey, 547 F.3d 712, 717 (7th Cir. 2008) (holding a petitioner s failure to mention a past forced abortion during an airport interview sufficient to warrant an adverse credibility determination). The omission is particularly suspect in light of the fact that Lin specifically referenced a fear that she would have to undergo future forced abortions if she was returned to China, but failed to mention the fact that she previously had been subjected to the very same experience. 16 Lin s explanation for the omission - that the Border Patrol Agent told her he could not record the details of her claim -- is undermined by the fact that Lin was able to mention several other details of her past, such as the fact that she was unmarried, had a child out of wedlock, and instructed her son to refer to her as Auntie. Perhaps most importantly, Lin acknowledged that she obtained the abortion certificate with an eye toward States. using significance to help indicates This that of it the incident her she with gain asylum was already regard to in a the aware United of future the asylum claim, making her omission all the more suspect. We also agree with the IJ s decision discounting Lin s explanation that a cultural misunderstanding accounted for her inconsistent testimony regarding her marital status. Her explanation is undermined by the fact that she repeatedly and unqualifiedly referred to herself as married throughout the asylum process, only to change course when confronted with her earlier, inconsistent testimony. Further undercutting her claim are her husband s affidavit attesting that the couple s marriage was permitted and blessed, and the statement from her motherin-law referring to the couple as married. Taken together, these facts give ample support for the IJ s determination that Lin s testimony was not credible. 17 In concluding that, under the facts and circumstances of this case, Lin s inconsistencies and omissions between her Border Patrol interview and her later testimony are sufficient to support the agency s adverse credibility determination, we note our hesitation in relying so extensively on statements made in such a setting. Most so-called airport interviews are brief affairs given in the hours immediately following long and often dangerous journeys circumstances caution determination solely omissions that environments. into against on arise the basing United an States. adverse inconsistencies out of credibility and, statements These especially, made in such As evidenced by the questions asked of Lin, the purpose of these interviews is to collect general identification and background information about the alien. JA 229-30. The interviews are not part of the formal asylum process, and are conducted without legal representation and before most aliens are aware asylum. of the Requiring elements necessary precise to evidentiary support a detail claim in for such circumstances ignores the reality of the interview process and places an unduly onerous burden on an alien who later seeks asylum. It is for these reasons a significant number of our sister circuits have limited the extent to which determinations may be based on airport interviews. 18 credibility See, e.g., Moab v. Gonzales, 500 F.3d 656, 660-61 (7th Cir. 2007) ( [A]irport interviews . . . are not always reliable indicators of credibility. . . . [I]nterviews in which the questions asked are not designed to elicit the details of an asylum claim, or the INS officer fails to ask follow-up questions that would aid the alien in developing his or her account [are less reliable]. ); Ramsameachire v. Ashcroft, 357 F.3d 169, 179 (2nd Cir. 2004) (Sotomayor, J.) ( The airport interview is an inherently limited forum for the alien to express the fear that will provide the basis for his or her asylum claim, and the BIA must be cognizant of the interview s limitations when using its substance against an asylum applicant. ); see also Joseph v. Holder, 600 F.3d 1235, 1243 (9th Cir. 2010) (citing Singh v. INS, 292, F.3d 1017, 1021 (9th Cir. 2002)); Tang v. Attorney General, 578 F.3d 1270, 1279 (11th Cir. Ashcroft, 333 F.3d 463, 477 (3rd Cir. 2003). 2009); Zubeda v. We hereby note our general agreement with the concerns expressed by these and other circuits over the agency s unqualified reliance on statements made in airport interviews. With these considerations in mind, we repeat why they fail to rescue Lin s claim for asylum. Lin s allegation of a forced abortion is not a minor evidentiary detail whose absence can be overlooked, it is the very core of her claim. Moreover, her acknowledgment that she requested documentation of the procedure 19 for the express purpose of supporting a future asylum claim indicates that she understood the importance of the incident. We therefore simply cannot countenance her complete failure to mention it during her interview. We also note that Lin s testimony regarding her marital status was not a mere omission, but a direct contradiction for which she later was unable to provide a believable explanation. We also demeanor topics and agree with the agency s assessment during questioning non-responsiveness support the adverse credibility that on determination. Lin s certain For example, Lin s testimony as to why she requested the abortion certificate was initially hesitant and confused. As explained above, she changed course several times before finally admitting that she thought the certificate would be helpful in supporting a future asylum claim. JA 115. Similarly, Lin gave a series of non-responsive answers to direct questions from the IJ asking whether she abortion. told the JA 192-95. Border Patrol Agent about the forced Only under repeated questioning did she acknowledge that she did not mention the procedure. Id. Lin s dubious testimony in these areas is especially significant given that they relate directly to the forced abortion, a topic about which there is already considerable question. In sum, far from compelling a contrary result, the evidence in this case reliably supports the agency s adverse credibility 20 determination. See Niang, 492 F.3d at 511. The IJ provided specific and cogent reasons for the decision, and we will not disturb the result in the absence of convincing evidence to the contrary. 3 B. Although adverse credibility determinations are generally fatal to an asylum claim, an applicant may still prevail if she can prove actual past persecution through independent evidence. Camara v. Ashcroft, 378 F.3d 361, 369 (4th Cir. 2004). conclude that determined the that agency Lin properly failed to reviewed provide the record independent We and evidence demonstrating past persecution. As discussed above, the abortion certificate provided by Lin is suspect in light of her unreliable testimony. In addition, her evidence of a fine for a violation of family planning regulations, which by itself is hardly demonstrable proof that reliable she suffered evidence from a the forced abortion, Department 3 of is State countered that by family However, we note our disagreement with the agency s determination that Lin s testimony about her place of residence in China was inconsistent or misleading. Likewise, we find no support for the agency s reliance on Lin s failure to provide a letter from her parents attesting that Chinese officials continue to visit their home in search of Lin and her husband when she provided a letter from her mother-in-law attesting to precisely the same facts. In light of the larger issues with Lin s claim, however, these errors of the agency were harmless. 21 planning area. regulations are no longer strictly enforced in the See Suarez-Valenzuela v. Holder, 714 F.3d 241, 248 (4th Cir. 2013) (noting that State Department reports are highly probative evidence of conditions in foreign countries) (quoting Gonahasa v. INS, 181 F.3d 538, 542 (4th Cir. 1999)). The agency also considered the affidavit from Lin s husband, but determined that it in fact hurt Lin s claim by contradicting her testimony regarding the couple s marital status. In any event, we have previously held that evidence offered as corroborating evidence [must] be objective . . . for immigration judge and BIA. and friends are not it to be considered by the Letters and affidavits from family objective evidence in this context. Djadjou v. Holder, 662 F.3d 265, 276 (4th Cir. 2011) (citation and quotation marks omitted). And although Lin is correct in noting that the agency did not specifically analyze every single item in the record, the IJ cataloged all of the evidence at the start of his opinion and reached his conclusion in light of the totality of the evidence. Gandziami-Mickhou, 445 F.3d at 358. We therefore hold that the agency s finding was supported by substantial evidence and is not manifestly contrary to law. denial of the Djadjou, 662 F.3d at 275. Accordingly, we affirm the agency s Petitioner s claim for asylum and for protection under the CAT. 22 She also necessarily fails to meet the more stringent burden of proof required to qualify for withholding of removal. IV. Finally, Lin argues that her due process rights were violated by the IJ s decision allowing the government to submit supplemental evidence after the August 31, 2010 merits hearing. Aliens are entitled proceedings. to due process of law deportation Demore v. Kim, 538 U.S. 510, 523 (2003) (citing Reno v. Flores, 507 U.S. 292, 306 (1993)). process in rights are violated when she is A petitioner s due not accorded an opportunity to be heard at a meaningful time and in a meaningful manner, such that she did not receive a full and fair hearing on [her] claims. Rusu v. United States I.N.S., 296 F.3d 216, 320 (4th Cir. 2002). Lin s argument discretionary submission of § 1208.13(a). is authority evidence Second, without to in the set and their IJ held merit. extend courts. an First, IJs deadlines See additional have for 8 the C.F.R. hearing to allow the new evidence to be fully examined and give Lin an opportunity to explain her prior statements. The parties were afforded several months to prepare for the hearing. In light of this, Lin has not shown how the IJ s decision limited her right 23 to be heard in a meaningful manner. We therefore reject her due process argument. V. For the reasons stated, we deny Lin s petition for review. PETITION DENIED 24 THACKER, Circuit Judge, concurring: This court s review of the agency s adverse credibility determination entails a relatively simple inquiry: whether substantial evidence, exemplified by specific, cogent reason[s], exists to support the agency s findings. Holder, 699 original). factors F.3d 321, 328 (4th Cir. 2012) Singh v. (alteration in Here, although the IJ identified a host of secondary that identified two negatively primary impacted reasons -- Lin s each credibility, stemming from he Lin s initial border interview -- for his adverse credibility finding: (1) the abortion omission and (2) the marriage discrepancy. Although I find the circumstances of the interview questionable, and I am of the view that such border interviews should be considered with caution, I ultimately agree with my colleagues conclusion that the agency s findings in this case are supported by substantial evidence. For this reason, and because I agree with the majority s analysis as to the other issues on appeal, I concur. I. A so-called airport or border interview takes place when an alien is deemed inadmissible immediately upon entering the United States and indicates an intention to apply for asylum or a fear of persecution. F.3d 624, 631 (2d Cir. 2006). Diallo v. Gonzales, 445 As my colleagues recognize, the 25 circuit courts particular of appeals interviews have should uniformly be carefully held that these scrutinized for reliability before being utilized by the fact-finder to evaluate an applicant s credibility. See, e.g., Joseph v. Holder, 600 F.3d 1235, 1243 (9th Cir. 2010); Tang v. Attorney General, 578 F.3d 1270, 1279 (11th Cir. 2009); Moab v. Gonzales, 500 F.3d 656, 660-61 (7th Cir. 2007); He Chun Chen v. Ashcroft, 376 F.3d 215, 223-24 (3d Cir. 2004); Ramsameachire v. Ashcroft, 357 F.3d 169, 179 (2d Cir. 2004). The reason for this special attention is straightforward: The interview takes place immediately after an alien has arrived in the United States, often after weeks of travel, and may be perceived by the alien as coercive or threatening, depending on the alien s past experiences. Moreover, at the interview, the alien is not represented by counsel, and may be completely unfamiliar with United States immigration laws and the elements necessary to demonstrate eligibility for asylum. Finally, because those most in need of asylum may be the most wary of governmental authorities, the BIA and reviewing court must recognize, in evaluating the statements made in an interview, that an alien may not be entirely forthcoming in the initial interview. Ramsameachire, 357 F.3d at 179. In Ramsameachire, one of the leading decisions in this area, the Second Circuit set forth a non-exhaustive list factors for assessing the reliability of airport interviews: First, a summarizes inherently transcript. interviews record of the interview that merely or paraphrases the alien s statements is less reliable than a verbatim account or Second, similarly less reliable are in which the questions asked are not 26 of designed to elicit the details of an asylum claim, or the INS officer fails to ask follow-up questions that would aid the alien in developing his or her account. Third, an interview may be deemed less reliable if the alien appears to have been reluctant to reveal information to INS officials because of prior interrogation sessions or other coercive experiences in his or her home country. Finally, if the alien s answers to the questions posed suggest that the alien did not understand English or the translations provided by the interpreter, the alien s statements should be considered less reliable. Id. at 180 (internal citations omitted). * Importantly, the Second Circuit do[es] not regard these factors as essential to be assessed in every case, but simply as helpful matters to be considered where appropriate. Guan v. Gonzales, 432 F.3d 391, 396 (2d Cir. 2005). II. In this case, I believe several of the factors outlined in Ramsameachire counsel in favor of scrutinizing Lin s initial interview with a particularly critical eye. I detail these factors not to disparage the majority s reasoning, but to emphasize the need to approach these interviews with extreme caution. * The Second Circuit derived these factors from two Third Circuit decisions, Senathirajah v. INS, 157 F.3d 210 (3d Cir. 1998) and Balasubramanrim v. INS, 143 F.3d 157 (3d Cir. 1998), and its reasoning has been approved by several other circuit courts of appeals. See, e.g., Moab, 500 F.3d at 661 (considering the Ramsameachire factors); Singh v. INS, 292 F.3d 1017, 1022 (9th Cir. 2002) (considering the same Senathirajah and Balasubramanrim factors). 27 As a threshold matter, the discrepancies noted by the IJ are derived translator primarily contained Questions. from the in the handwritten document notes entitled of the Translator Although portions of the document reflect Lin s verbatim responses to the questions asked, other portions slip into the third person and thus appear to be the translator s own summar[ry] or paraphrase[] of Lin s statements. Ramsameachire v. Ashcroft, 357 F.3d 169, 180 (2d Cir. 2004). Second, the Translator Questions were not designed to elicit the evidence that the would details of an questioning aid [Lin] asylum officer in claim, ask[ed] developing Ramsameachire, 357 F.3d at 180. nor . is follow-up . . her there any questions account. For example, the border patrol agent asked Lin, If you are sent back to your country, do you fear that you will be persecuted or tortured? JA 235. This question is directed at future - not past - persecution, i.e., Lin s fears with respect to being sent back to China. answer, although muddled, reflects her desire to have Lin s more children and her belief she would be forced into abortion or [tubal] ligation in China. interview do not indicate Id. the The documents from the border agent asked Lin any follow-up questions with respect to this future fear question, nor do they indicate she was asked any questions at all with respect to past persecution. Rather, the translator s questions came from 28 a pre-printed worksheet focused on obtaining basic identifying and immigration information. This perfunctory series of questions is a fairly archetypal border interview - and the reason so many courts have stressed that such an interview is not the equivalent of an application for asylum. See, e.g., Singh v. INS, 292 F.3d 1017, 1023 (9th Cir. 2002) (an airport interview d[oes] not necessarily contain questions designed to elicit the details of an asylum claim (quoting Balasubramanrim v. INS, 143 F.3d 157, 162 (3d Cir. 1998)). Finally, interview deserve immediately after the overall mention. circumstances She crossing the was Rio of Grande, border by seized Lin s armed agents handcuffed, transported by police car to the border patrol station. and She testified she had never seen a firearm before and described in detail the terror questioning. she felt during the initial detention and If Lin s subsequent account of her experience at the hands of the Chinese government is to be believed, she may well have had valid reasons to be less than forthcoming with governmental authorities in such a situation. See Ramsameachire, 357 F.3d at 179. In this case, the IJ, albeit not in so many words, acknowledged nevertheless, each that of the the above border circumstances interview and was concluded, sufficiently reliable so as to serve as a basis for his adverse credibility 29 determination. result. The record here does not compel a contrary See Niang v. Gonzales, 492 F.3d 505, 511 (4th Cir. 2007) ( [W]here the record plausibly could support two results: the one the IJ chose and the one [the petitioner] advances, reversal is only appropriate where the court find[s] that the evidence not only supports [the opposite] conclusion, but compels it. (alterations in original) (internal quotation marks and citation omitted)). follow the lead of I also observe that, even if we were to the Eleventh Circuit in distinguishing between simple omissions and impermissible contradictions in the context of border interviews, see Tang v. Attorney General, 578 F.3d 1270, 1279 (11th Cir. 2009), Lin has offered no argument with respect to the IJ s reliance on the direct contradiction present in her marital status testimony. Inasmuch as this contradiction alone, coupled as it is with the myriad secondary factors identified by the IJ, would be sufficient to support the agency s findings, see Djadjou v. Holder, 662 F.3d 265, 273-74 (4th Cir. 2011), I see no grounds for reversing the credibility determination in this case. III. The issue in the present case, as in immigration cases, turns on the standard of review. so many While the IJ could have -- and perhaps should have -- engaged in a more detailed analysis of his reasons 30 for relying on the border interview, I am satisfied the record of this case reflects that the appropriate factors were adequately concur in denying the petition for review. 31 considered. I thus
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
