Lin v. Atty Gen USA , 284 F. App'x 864 ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
7-7-2008
Lin v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-2451
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"Lin v. Atty Gen USA" (2008). 2008 Decisions. Paper 894.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-2451
___________
MU JIN LIN,
Petitioner
v.
ATTORNEY GENERAL OF
THE UNITED STATES,
Respondent
_________________________________
On Petition for Review of an Order of Removal
of the Board of Immigration Appeals
Agency No. A77-340-396
Immigration Judge: Daniel A. Meisner
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 25, 2008
Before: SLOVITER, STAPLETON AND COWEN, Circuit Judges
(Opinion filed: July 7, 2008)
_________
OPINION
_________
PER CURIAM
Mu Jin Lin petitions for review of an order of the Board of Immigration Appeals
(“BIA”), which affirmed an order issued by an Immigration Judge (“IJ”) denying her
applications for asylum, withholding of removal, and protection under the Convention
Against Torture (“CAT”). We will deny the petition for review.
Lin, a native and citizen of the People’s Republic of China, attempted to enter the
United States without inspection on January 19, 2001. She was determined to be
inadmissible, and the Department of Homeland Security (“DHS”) initiated removal
proceedings against her. The IJ held a hearing on April 12, 2005, and denied Lin’s
applications. Lin appealed to the BIA, which affirmed, without opinion.
Lin testified to the following facts. In 1995, she married Chun Au Lin and moved
into his home. The marriage failed, and the couple eventually separated, though they
never divorced. Lin remained in her husband’s house and continued managing a noodle
shop they had started. Lin began dating a new man, Jian An Wang, and he moved into
her home in January 2000. In May 2000, Lin became pregnant. Lin testified that her
neighbors were aware of this new relationship and that she was technically still married
to her husband. Lin also testified that, although she did not apprise anyone other than
Wang, her sister, and her doctor of her pregnancy, she often vomited at her noodle shop
in plain view of her neighbors. In June 2000, two men from the village committee
stormed Lin’s residence in the middle of the night. Lin heard one of them state, “you
with other strange men having child.” Her boyfriend awoke and told Lin to escape. She
was injured during the escape and had a miscarriage a few days later. Lin hid at her
sister’s home for three or four months and then left China. Lin asserted that the village
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committee came to her residence to force her to abort her pregnancy, and that she has
shown past persecution based on their actions. She also argued that she had a well-
founded fear of future persecution because she left China illegally. Lin submitted a letter
from her sister stating that the police had arrested Wang and confiscated Lin’s home.
The IJ determined that Lin had not met her burden of showing past persecution
because she had failed to show that the village committee stormed her house in order to
force her to abort her pregnancy. The IJ also determined that Lin had not demonstrated a
well-founded fear of future persecution, as Lin had presented no evidence that anyone in
China knew that she had left illegally. For the same reason, the IJ concluded that Lin had
not demonstrated that, more likely than not, she would be tortured if forced to return to
China.
Lin now argues that the IJ made an adverse credibility determination, and that he
made legal and factual errors by concluding that she had failed to show that the village
committee caused her to suffer a miscarriage, that she had failed to demonstrate
economic persecution, and that she had failed to produce corroborating documents, such
as proof of pregnancy.
We have jurisdiction to review a final order of removal of the BIA under 8 U.S.C.
§ 1252(a)(1). When the BIA affirms the IJ’s decision without opinion, we review the
IJ’s opinion. Dia v. Ashcroft, 353 F.3d 228, 245 (3d Cir. 2003) (en banc). We review
the IJ’s determination regarding an applicant’s fear of persecution under the substantial
3
evidence standard. Yu v. Att’y Gen., 513 F.3d 346, 348 (3d Cir. 2008). We will not
disturb factual findings unless a reasonable fact-finder would be compelled to find that
the IJ erred. Id.
An applicant for asylum bears the burden of establishing that she is unable or
unwilling to return to her home country “because of [past] persecution or well-founded
fear of [future] persecution on account of race, religion, nationality, membership in a
particular social group, or political opinion[.]” 8 U.S.C. § 1101(a)(42)(A); see 8 C.F.R. §
1208.13(a); Abdille v. Ashcroft, 242 F.3d 477, 482 (3d Cir. 2001). “The [applicant]
must show by credible, direct, and specific evidence an objectively reasonable basis for
the claimed fear of persecution.” Chen v. Ashcroft, 376 F.3d 215, 223 (3d Cir. 2004).
We must reject Lin’s arguments. The IJ did not make an adverse credibility
determination; instead, the IJ based his decision on Lin’s failure to meet her burden of
proof. The IJ determined that Lin had not supported her claim that the village committee
stormed her home in order to force her to abort her pregnancy. Lin testified that her
neighbors could have seen her vomiting at her noodle shop, could have inferred she was
pregnant, and could have notified the village committee. Lin also testified that her
neighbors were aware that she was living in her husband’s house with a man who was
not her husband. Although Lin testified that one of the men who stormed her home
stated that Lin was living with “strange men” and having a child, a reasonable fact-finder
would not be compelled to conclude that the village committee stormed her house in
4
order to force her to abort her pregnancy instead of for some other reason, such as her
extramarital relationship.
Lin next argues that the IJ erred by concluding that she had not suffered economic
persecution on account of her opposition to forced abortions. We have recognized that
severe economic punishment may constitute persecution. Li v. Ashcroft, 400 F.3d 157
(3d Cir. 2005). In Li, we held that a Chinese national suffered persecution when he was
subjected to severe economic punishment for violating China’s population control
policies; he had been fined twenty months’ salary, had lost his health benefits and had
suffered the confiscation of his household furniture and appliances. In addition, Li had
asserted that, “it would be impossible” for him to find other employment because the
government also had blacklisted him from any government employment. Id. at 168-69.
Lin testified at the merits hearing that she could have been fined for the
unauthorized pregnancy, but that she was not fined. Lin also submitted a letter from her
sister stating that government officials had arrested Wang and confiscated Lin’s home,
but as the IJ noted, Lin presented no evidence that the government took these actions on
the basis of a protected category. Finally, Lin offered no evidence that she could not
have found other employment had the government confiscated her noodle shop. In light
of these facts, we cannot say that a reasonable fact-finder would be compelled to
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conclude that Lin suffered economic persecution.1
1
Lin also asserts that the IJ impermissibly required corroboration of certain facts, such
as her pregnancy. An applicant’s failure to corroborate may undermine her case if: (1) the
facts at issue are facts for which corroboration is reasonable to expect; (2) the applicant
failed to corroborate those facts; and (3) the applicant has not adequately explained her
failure to do so. Abdulai v. Ashcroft, 239 F.3d 542, 554 (3d Cir. 2001). The IJ did not
analyze Lin’s failure to corroborate her pregnancy under Abdulai, but he did not base his
decision on her failure to corroborate her pregnancy. Instead, the IJ denied Lin’s
applications because she failed to demonstrate that the village committee stormed her
home for a reason that would constitute persecution on account of a protected category.
6