Lin-Jian v. Gonzales ( 2007 )


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  •                             PUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    CHEN LIN-JIAN, a/k/a Jian Cheng         
    Lin,
    Petitioner,
    v.                             No. 05-1693
    ALBERTO R. GONZALES, Attorney
    General,
    Respondent.
    
    On Petition for Review of an Order
    of the Board of Immigration Appeals.
    (A96-192-840)
    Argued: October 27, 2006
    Decided: May 30, 2007
    Before NIEMEYER, TRAXLER, and SHEDD, Circuit Judges.
    Petition granted in part and denied in part by published opinion. Judge
    Traxler wrote the majority opinion. Judge Niemeyer wrote an opinion
    concurring in part and dissenting in part. Judge Shedd wrote an opin-
    ion concurring in part and dissenting in part.
    COUNSEL
    ARGUED: Yee Ling Poon, New York, New York, for Petitioner.
    Lauren A. Wetzler, Assistant United States Attorney, OFFICE OF
    THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
    Respondent. ON BRIEF: Robert Duk-Hwan Kim, New York, New
    2                       LIN-JIAN v. GONZALES
    York, for Petitioner. Paul J. McNulty, United States Attorney, Alex-
    andria, Virginia, for Respondent.
    OPINION
    TRAXLER, Circuit Judge:
    Chen Lin-Jian, a native of the People’s Republic of China, claims
    that he fled to the United States in order to escape China’s "one cou-
    ple, one child" policy. Lin concedes that he is removable for being
    present without having been admitted or paroled into the United
    States, see 8 U.S.C. § 1182(a)(6)(A)(i), but seeks relief from removal
    via political asylum, withholding of removal, and protection under the
    Convention Against Torture ("CAT"). The Immigration Judge denied
    Lin’s application for all three forms of relief and the Board of Immi-
    gration Appeals ("BIA") summarily affirmed this denial.
    Lin petitions this court for review of the BIA’s decision. We grant
    the petition for review as to Lin’s claims for asylum and withholding
    of removal and remand these claims for further evaluation. However,
    we deny Lin’s petition for review of the BIA’s denial of relief under
    the CAT.
    I.
    A.
    Lin and his wife, who remains in China, are from a rural area near
    Changle City in China’s Fujian Province. According to Lin, the cou-
    ple married in 1993 and they have two children who also remain in
    China. Their first child, a daughter, was born in April 1994, and the
    second child, a son, was born in August 1995. For proof of his two
    children, Lin submitted Notarial Birth Certificates that include pic-
    tures of the children, provide their birthdates and birthplaces, and
    identify Lin and his wife as the parents. The certificates were issued
    in May 2003 by the Changle City Notary Public Office. Lin also sub-
    mitted the children’s Permanent Resident Registration Cards which
    include their birthdates and note their relationship to Lin; a Changle
    LIN-JIAN v. GONZALES                         3
    City family-planning check-up card indicating that Lin and his wife
    have a male child born in August 1995 and a female child born in
    April 1994; and a family photo.
    Lin claims that, after the birth of his daughter, family-planning
    officials indicated the couple would be required to wait five years
    before they could have a second child and directed them to use con-
    traceptive measures. At his asylum hearing, Lin testified that in his
    area of the Fujian province, couples are allowed two children, five
    years apart. Lin’s assertions were consistent with the State Depart-
    ment’s 1998 profile of conditions in China submitted by Lin. Accord-
    ing to the report, officials in both urban and rural areas of the Fujian
    province did not follow a strict one-child policy, often permitting a
    second child if the first is female and the parents wait for a given
    number of years between children. See Report of U.S. Dept. of State,
    China: Profile of Asylum Claims and Country Conditions, at 20
    (April 14, 1998) ("1998 Report").
    Despite the order that they wait five years, Lin claims that his wife
    gave birth to their son sixteen months later. Lin testified that family-
    planning officials did not immediately discover the unauthorized
    birth; rather, they became aware of Lin’s second child the following
    year in December 1996 when Lin’s parents went to file a household
    registration for Lin’s son. Lin testified that the government imposed
    a fine of 10,000 RMB, which Lin testified was the equivalent of
    $1,000 at the time. Lin paid the fine and submitted a receipt evidenc-
    ing payment of the fine on December 15, 1996, for "violation of [the]
    birth interval." J.A. 227.
    According to Lin’s affidavit, family-planning officials also ordered
    that Lin’s wife be sterilized. Lin claims "one of our relatives with
    connection[s] to the cadres" persuaded them "not to sterilize us" but
    to use an "IUD instead." J.A. 179. In support, Lin submitted a docu-
    ment entitled "Changle City Certificate of Family Planning Opera-
    tion," which indicates that Lin’s wife underwent an IUD insertion
    procedure on December 16, 1996. Lin also notes that his wife was
    directed to submit to regular gynecological exams as reflected by the
    pregnancy check-up cards he offered into evidence. This document
    lists these official pregnancy check-up visits from January 1997 to
    September 2001, each of which is initialed by the "Cadre-in-charge"
    4                        LIN-JIAN v. GONZALES
    and a doctor. Notations for the final visit indicate that the IUD was
    still in place and Lin’s wife was not pregnant at the time.
    According to Lin’s affidavit, he and his wife hired a private doctor
    in December 2001 to remove the IUD, and, in April 2002, Lin’s wife
    again became pregnant. Lin’s affidavit asserted that his wife hid from
    family-planning officials at her parents’ house in LuBei village,
    which is part of Changle City. Lin claims this move was unsuccessful,
    however, as officials appeared at his mother-in-law’s house on
    August 21, 2002, and "forcibly took [Lin’s] wife to Changle City
    Hospital where she was involuntarily aborted on that day." J.A. 179.
    Lin testified that at the time the political cadre took Lin’s wife for an
    abortion, he was away in Fuzhou City where he worked in construc-
    tion. Lin learned about the abortion when his mother-in-law called
    him that morning; Lin says he did not see his wife until 10:00 p.m.
    After the abortion was performed, family-planning officials indi-
    cated that Lin’s wife would be required to undergo sterilization. Lin
    claims that this threat caused them to flee Changle City the day after
    the abortion to hide in the home of Lin’s uncle in Fuzhou City —
    which is also in the Fujian Province — leaving their children in the
    care of Lin’s parents in Changle City. At the hearing, Lin testified that
    his parents brought the children to visit his wife, but Lin did not indi-
    cate whether they came to visit more than once. To corroborate his
    testimony, Lin produced, in addition to the evidence already men-
    tioned, a declaration from his wife which was signed but not nota-
    rized. The declaration was consistent with Lin’s testimony in all
    major respects.
    In December 2002, approximately four months after Lin and his
    wife relocated to Fuzhou City, Lin fled China, leaving his wife at his
    uncle’s house in the hope that, "if the cadres found [her], they might
    not sterilize her since I [am] no longer in China." J.A. 180. Lin testi-
    fied that he fears returning to China because he believes that he will
    be forcibly sterilized.
    During cross-examination, Lin acknowledged that he left China
    with the help of a so-called "snakehead" who procured for Lin a Chi-
    nese passport bearing Lin’s picture but a false name.1 Lin indicated
    1
    "Snakeheads" are professional smugglers of Chinese migrants. See
    generally Silva-Rengifo v. Att’y Gen. of the United States, 
    473 F.3d 58
    ,
    65 (3d Cir. 2007).
    LIN-JIAN v. GONZALES                          5
    that he used his own identification card to board a plane from Changle
    City to Hong Kong. In Hong Kong, however, Lin was forced to use
    the false passport to board an international flight to Mexico and then
    to the United States, for which the snakehead had procured visas.
    (J.A. 109) Lin testified that he agreed to pay the snakehead $10,000,
    which he borrowed from relatives and friends. He admitted working
    illegally in the United States in order to repay this debt.
    B.
    In an oral decision, the immigration judge (IJ) concluded that
    "[b]ased on the totality of the evidence," Lin-Jian failed to establish
    past persecution or a well-founded fear of future persecution and,
    therefore, was ineligible for asylum. J.A. 47. In explaining her con-
    clusion, the IJ felt certain aspects of Lin’s testimony were implausi-
    ble, undercutting Lin’s assertion that he feared persecution. For
    example, the IJ questioned whether someone who feared being dis-
    covered by the authorities to the point that he went into hiding with
    his wife, as Lin claimed, would continue to report for work at a con-
    struction site. The IJ also dismissed Lin’s testimony that he was
    forced to work in order to support his family, reasoning that if Lin
    "was able to borrow $10,000 U.S. dollars from relatives to pay a
    snakehead" then "he could have borrowed money from relatives while
    he remained in hiding." J.A. 48. Additionally, the IJ found it unlikely
    that a couple in hiding from family planning cadre would permit their
    children to be brought to the hiding place on a regular basis to visit.
    The IJ concluded that Lin’s testimony regarding the circumstances
    of his departure from China likewise undermined Lin’s claim of a
    well-founded fear of persecution. The IJ noted that, had Lin truly
    been fearful of sterilization, he would not have presented his own
    identification card when boarding the plane in Changle City but
    "would have made arrangements with the snakehead for an alternate
    way of leaving the country." J.A. 49.
    The IJ suggested that the documents submitted by Lin to prove the
    existence of his two children were lacking. Citing Matter of Ma, 20
    I & N Dec. 394 (BIA 1991), the IJ noted that when notarial birth cer-
    tificates are "issued a period of time after the subject’s birth . . . any
    and all supporting evidence should accompany such certificates as
    6                        LIN-JIAN v. GONZALES
    evidence of the claimed relationship." J.A. 48. The IJ considered the
    Permanent Resident Registration Cards which set forth the children’s
    dates of birth and relationship with Lin but found them "not of great
    assistance" because Lin’s registration listed his occupation in 2001 as
    that of farmer, not construction worker as Lin had testified. J.A. 61.
    Finally, the IJ observed that none of the government documents
    submitted by Lin had been authenticated and that the letter purport-
    edly from Lin’s wife had not been notarized. It is unclear whether the
    IJ refused on this basis to consider these documents at all or whether
    the IJ merely accorded the documents little weight.
    Thus, the IJ denied Lin’s application for asylum and, in view of
    Lin’s failure to establish eligibility for asylum, denied Lin’s applica-
    tion for withholding of removal under its more demanding "clear
    probability" standard. The IJ denied relief under the CAT as well,
    finding that Lin failed to meet his burden of proof for the same rea-
    sons that he failed to establish eligibility for asylum and withholding
    of removal. On appeal, the BIA summarily affirmed. Thus, the IJ’s
    decision serves as the final agency determination and we review it as
    if it were the BIA’s decision. See 8 C.F.R. § 1003.1(e)(4).
    II.
    A.
    In order to be eligible for asylum, Lin must establish "refugee" sta-
    tus under the INA. The Attorney General has the discretion to grant
    asylum to an alien who successfully demonstrates that he qualifies as
    a refugee. See 8 U.S.C. § 1158(b). A "refugee" is an individual "who
    is unable or unwilling to return to" his native country "because of per-
    secution or a well-founded fear of persecution on account of race,
    religion, nationality, membership in a particular social group, or polit-
    ical opinion." 8 U.S.C. § 1101(a)(42)(A).
    An alien "may qualify as a refugee either because he or she has suf-
    fered past persecution or because he or she has a well-founded fear
    of future persecution." 8 C.F.R. § 1208.13(b) (emphasis added). An
    asylum applicant who establishes past persecution on account of a
    LIN-JIAN v. GONZALES                           7
    protected ground is entitled to a presumption that he or she has a well-
    founded fear of persecution on that same ground. See 8 C.F.R.
    § 1208.13(b)(1); see also Camara v. Ashcroft, 
    378 F.3d 361
    , 367 (4th
    Cir. 2004) ("If the applicant establishes that she has suffered past per-
    secution, a presumption arises that she has the requisite level of fear
    of persecution."). The government may rebut this presumption if it
    establishes, by a preponderance of the evidence, that "[t]here has been
    a fundamental change in circumstances such that the applicant no lon-
    ger has a well-founded fear of persecution" in his native country or
    that "[t]he applicant could avoid future persecution by relocating to
    another part of the applicant’s country" and it was reasonable to do
    so. 8 C.F.R. § 1208.13(b)(1)(i)(A)-(B); see 8 C.F.R. § 1208.13(b)(ii).
    If the applicant is unable to establish a claim based on past persecu-
    tion, he or she must demonstrate a well-founded fear of persecution
    which has both subjective and objective components, meaning "that
    the applicant is subjectively afraid and that the fear is objectively well-
    founded." 
    Camara, 378 F.3d at 367
    . A claim based on past persecu-
    tion, however, does not require the applicant to show he or she sub-
    jectively fears persecution in the country of origin. See 
    id. at 369-70
    ("In cases where the applicant can prove actual past persecution . . .
    she need not prove the subjective component of well-founded fear."
    (internal quotation marks omitted)).
    Congress specifically included within the definition of "refugee"
    persons "forced to undergo an involuntary sterilization or abortion,"
    persons "persecuted for refusing to undergo such a procedure or for
    other resistance to a coercive population control program," and per-
    sons with "a well-founded fear of being subjected to [a forced abor-
    tion or sterilization, or persecuted for resistance to] a coercive
    population control program." Chen v. INS, 
    195 F.3d 198
    , 202 (4th Cir.
    1999); see 8 U.S.C. § 1101(a)(42). See also Li v. Gonzales, 
    405 F.3d 171
    , 176 (4th Cir. 2005) (explaining that Congress amended the defi-
    nition of "refugee" in order to change previous court and BIA rulings
    holding "that victims of China’s ‘one child’ policy had not been per-
    secuted on a protected basis, and had been denied asylum requests
    based on this ground").
    The BIA interprets this provision to cover the spouse of a person
    subjected to a forced abortion or sterilization, see In re C-Y-Z, 21 I.
    & N. Dec. 915, 918 (1997), and the government does not challenge
    8                        LIN-JIAN v. GONZALES
    this interpretation. Courts, by and large, have approved this construc-
    tion as well. See Qiu v. Ashcroft, 
    329 F.3d 140
    , 151 (2d Cir. 2003);
    He v. Ashcroft, 
    328 F.3d 593
    , 603-04 (9th Cir. 2003); Cao v. Gon-
    zales, 
    442 F.3d 657
    , 660 (8th Cir. 2006). Thus, Lin may establish eli-
    gibility for asylum or withholding of removal by demonstrating that
    his wife was forced to undergo an abortion or that he himself has a
    well-founded fear of sterilization or other persecution if he returns to
    China.
    B.
    Lin contends that in rejecting the application for asylum and with-
    holding of removal, the IJ relied on an adverse credibility determina-
    tion that is not supported by substantial evidence. Moreover, Lin
    asserts that the IJ did not discredit his testimony regarding his wife’s
    forced abortion and failed to consider other evidence of past persecu-
    tion.
    1.
    Lin bears the burden of proving his refugee status. See 8 C.F.R.
    § 208.13(a). "The testimony of the [asylum] applicant, if credible,
    may be sufficient to sustain the burden of proof without corrobora-
    tion." 8 C.F.R. § 208.13(a). We must affirm the agency’s decision as
    long as it is not "manifestly contrary to the law." 8 U.S.C.
    § 1252(b)(4); see Tewabe v. Gonzales, 
    446 F.3d 533
    , 538 (4th Cir.
    2006). We defer to the agency’s "credibility findings that are sup-
    ported by substantial evidence." 
    Camara, 378 F.3d at 367
    . If the IJ
    rejects the testimony of an asylum applicant on credibility grounds,
    however, he "should offer a specific, cogent reason for his disbelief."
    
    Id. (internal quotation
    marks omitted). "‘Inconsistent statements, con-
    tradictory evidence, and inherently improbable testimony’" are exam-
    ples of cogent reasons that could support an adverse credibility
    finding. 
    Tewabe, 446 F.3d at 538
    (quoting In re S-M-J-, 21 I. & N.
    Dec. 722, 729 (BIA 1997) (en banc). By contrast, we will not defer
    to an adverse credibility finding that is "based on speculation, conjec-
    ture, or an otherwise unsupported personal opinion." 
    Id. (internal quo-
    tation marks omitted).
    In her oral decision, the IJ concluded that Lin’s testimony was not
    credible to the extent he claimed that, following his wife’s abortion,
    LIN-JIAN v. GONZALES                          9
    the couple went into hiding to avoid being forcibly sterilized by gov-
    ernment family planning officials. Specifically, the IJ found Lin’s tes-
    timony that he departed from Changle City by presenting his own
    identification card to government officials inconsistent with someone
    who was in hiding for fear of being discovered by family planning
    officials: "[I]f the respondent were so fearful, it seems logical to this
    Court that he would have made arrangements with the snakehead for
    an alternate way of leaving the country." J.A. 49.
    Lin argues that this finding rests upon speculation, as there was no
    evidence that airport officials have access to the identities of, or are
    tasked with identifying or apprehending, Chinese nationals whom
    family planning officials intend to sterilize. We agree with Lin that
    this particular basis for rejecting Lin’s testimony rests upon an unsup-
    ported implicit assumption that airport officials are equipped to iden-
    tify citizens sought by family planning cadre. Cf. Cao He Lin v.
    United States Dep’t of Justice, 
    428 F.3d 391
    , 405 (2d Cir. 2005)
    (explaining that adverse credibility finding as to applicant’s forced
    abortion claim was too speculative where it was based on applicant’s
    failure to produce a written abortion notice but there was no evidence
    suggesting that forced abortions were usually triggered by written
    notice).
    The IJ, however, also found that Lin’s testimony lacked credibility
    because it was inconsistent with his affidavit filed in support of his
    asylum application. The affidavit indicated that after his wife’s forced
    abortion, "the cadres ordered one of us to undergo sterilization. We
    did not want to be sterilized . . . We went to hide in my uncle’s house
    in Fuzhou City." J.A. 180. During the hearing, Lin confirmed that his
    wife went into hiding the very next day after her abortion; Lin also
    indicated that he was hiding at his uncle’s house as well. However,
    Lin stated that he continued to report to work. The IJ found that this
    inconsistency undermined Lin’s claim of well-founded fear: "If [Lin]
    were in fear of being sterilized, as he so claims, then he would not
    go in and out of hiding." J.A. 60.
    Lin argues that the IJ misconstrued this testimony. Lin testified that
    "sometimes, I was hiding in my uncle’s house. Sometimes I went to
    work in the construction . . . workplace." J.A. 116. The IJ concluded
    that if Lin truly feared that the government would find him and forci-
    10                        LIN-JIAN v. GONZALES
    bly sterilize him, he would not risk going "in and out" of hiding. Lin
    argues that he did not believe that he was "coming out" of hiding by
    reporting to work and that the IJ missed the clear meaning of this tes-
    timony — that Lin continued to work while he was hiding at his
    uncle’s house. Lin points out that this was consistent with his behav-
    ior prior to his wife’s abortion, i.e., Lin went to work in Fazhou City
    while his wife was hiding at her parents’ home in Changle City.
    Although Lin’s preferred interpretation of the testimony is viable, it
    is not the only plausible option and we are not compelled to conclude
    that the IJ misconstrued Lin’s testimony with respect to his fear of
    future persecution. See 8 U.S.C. § 1252(b)(4)(B); cf. Xiao Ji Chen v.
    United States Dep’t of Justice, 
    471 F.3d 315
    , 336 n.16 (2d. Cir. 2006)
    (affirming IJ’s rejection of petitioner’s claim that she continued to
    work after going into hiding from Chinese officials because "‘[t]he
    purpose of going into . . . hiding is to avoid the officials,’ and yet peti-
    tioner’s workplace was ‘the very first place’ those officials would
    have searched for petitioner ‘other than her home’"); Chen v. United
    States Atty. Gen., 
    463 F.3d 1228
    , 1232 (11th Cir. 2006) (finding that
    IJ provided specific and cogent reason for rejecting applicant’s claim
    that he feared arrest because applicant approached strangers and "told
    them where he was hiding").
    Lin also argues that the court relied on speculation when it rejected
    his explanation for continuing to work. Lin explained that he had to
    support his family, requiring him to leave his uncle’s house and report
    to his construction job in Fuzhou City. The IJ observed, however, that
    Lin was "able to borrow $10,000 U.S. dollars from relatives to pay
    a snakehead to come to the United States. If the facts are as he so
    claims, [Lin] could have borrowed money from relatives while he
    remained in hiding . . . protecting himself and his wife." J.A. 60. Lin
    suggests that even though he obtained $10,000 from relatives to pay
    the snakehead, it does not follow that he could have borrowed the
    money to support his family so that he would not have to report to
    work and risk being seen. Lin claims people would not be as inclined
    to lend money so that he could support his family without having to
    risk going to work. There is no testimony or other evidence, however,
    to support Lin’s explanation. Lin testified simply that he paid the
    snakehead $10,000 and that he obtained the funds from relatives. We
    conclude that the IJ provided a specific and cogent reason based on
    common sense for dismissing Lin’s explanation. Lin was, in fact, able
    LIN-JIAN v. GONZALES                         11
    to obtain $10,000 which he used to pay a smuggler rather than meet
    his living expenses. The IJ reasonably concluded that in view of Lin’s
    ability to acquire substantial funds, he could have borrowed enough
    to meet living expenses during the three month period he claimed to
    be in hiding. "[T]he requirement that an IJ provide a specific and
    cogent reason for an adverse credibility finding leaves ample room for
    the IJ to exercise common sense in rejecting [an applicant’s] testi-
    mony even if the IJ cannot point to . . . contrary evidence in the record
    to refute it." 
    Tewabe, 446 F.3d at 540
    (internal quotation marks omit-
    ted).
    Additionally, the IJ concluded that it was "implausible that [Lin’s]
    wife is in hiding in his uncle’s home in Fuzhou City, yet it appears
    that his parents regularly bring their children to visit her while she is
    in hiding." J.A. 61. The IJ noted that "if they are so fearful of the gov-
    ernment officials discovering her hiding place, then the parents would
    not be bringing the children to visit her at the place of hiding." 
    Id. The IJ
    found this testimony particularly incredible in view of Lin’s testi-
    mony that government officials had previously located his wife while
    she was in hiding.
    Lin contends that the IJ mischaracterized his testimony that his
    wife’s parents "have brought those two children to see my wife, to
    visit my wife." J.A. 101-02. The IJ concluded that it was "implausi-
    ble" to think that his wife’s parents would "regularly bring their chil-
    dren to visit." J.A. 61 (emphasis added). Lin asserts that there is no
    basis to conclude that these visits occurred on a regular basis or were
    ongoing. We agree. It is clear that the grandparents brought the chil-
    dren to visit their mother in Fazhou City, but Lin did not say how
    often or how many times this occurred. Because the government has
    pointed to nothing else in the record to support this finding, we con-
    clude it is not supported by substantial evidence. It is not clear
    whether the IJ would have relied on a single visit by the children,
    rather than ongoing visits, as a reason for rejecting Lin’s claim that
    the couple feared being discovered by the family planning officials.
    In any case, we conclude that substantial evidence supports at least
    two of the IJ’s reasons for rejecting Lin’s testimony that he has a
    well-founded fear of sterilization, and consequently we are not "com-
    pelled to conclude" that Lin’s testimony was reliable. See 8 U.S.C.
    12                       LIN-JIAN v. GONZALES
    § 1252(b)(4)(B); see also Tarrawally v. Ashcroft, 
    338 F.3d 180
    , 187
    (3d Cir. 2003) (affirming adverse credibility finding as supported by
    substantial evidence even though "[s]ome of the IJ’s reasons for his
    adverse credibility determination were based on presumptions not
    grounded in the record").
    2.
    Lin contends that even if the IJ’s adverse credibility findings are
    supported by substantial evidence, we cannot sustain the denial of
    asylum and withholding of removal because the IJ failed to articulate
    any basis for rejecting Lin’s claim that he suffered past persecution
    by virtue of his wife’s forced abortion. Rather, Lin suggests that none
    of the reasons underlying the adverse credibility determination pertain
    to Lin’s testimony regarding his wife’s forced abortion. Moreover,
    Lin contends that the IJ did not have a sufficient basis for discounting
    other independent evidence of past persecution.
    We agree with Lin that the IJ did not make an adverse credibility
    determination with respect to his testimony regarding his wife’s
    forced abortion. To the extent that the IJ expressed skepticism and
    doubt about Lin’s testimony, it was that Lin’s story did not demon-
    strate a subjective fear of persecution. A determination that Lin’s tes-
    timony that he feared sterilization or other punishment was not
    believable does not defeat an asylum claim where there is also evi-
    dence of past persecution. See 
    Camara, 378 F.3d at 369-70
    ("In cases
    where the applicant can prove actual past persecution, however, a pre-
    sumption arises that she has the requisite level of fear of persecution,
    and thus she need not prove the subjective component of ‘well-
    founded fear.’").
    When an IJ is silent on the issue of credibility, it is appropriate to
    presume that the applicant testified credibly. See Krotova v. Gonzales,
    
    416 F.3d 1080
    , 1084 (9th Cir. 2005) ("When the BIA’s decision is
    silent on the issue of credibility . . ., we may presume that the BIA
    found the petitioner to be credible."); see also Toure v. Att’y Gen. of
    the United States, 
    443 F.3d 310
    , 326 n.9 (3d Cir. 2006).2 Here,
    2
    The INA was amended through the REAL ID Act of 2005, Pub. L.
    No. 109-13, § 101(a)(3)(B)(iii), 119 Stat. 302, 303 (2005), to provide
    LIN-JIAN v. GONZALES                           13
    because none of the IJ’s credibility findings pertained to Lin’s testi-
    mony about past persecution, the IJ was essentially silent. Thus, we
    can presume Lin’s testimony was credible in this regard.
    Lin’s testimony, standing alone, "may be sufficient to sustain the
    burden of proof without corroboration." 8 C.F.R. § 208.13(a). How-
    ever, even for credible testimony, corroboration may be required
    when it is reasonable to expect such proof and there is no reasonable
    explanation for its absence. See In re S-M-J-, 21 I. & N. Dec. 722,
    Interim Decision 3303 (BIA 1997). The requirement that the applicant
    provide a reasonable explanation for the lack of corroborating evi-
    dence "presumes that the IJ offers a petitioner an opportunity to
    explain the absence." Obale v. Att’y Gen. of the United States, 
    453 F.3d 151
    , 163 (3d Cir. 2006). The oral decision issued by the IJ stated
    in conclusory fashion that Lin failed to meet his burden of proof, but
    it provided no explanation as to what corroborating evidence Lin
    lacked, why it was reasonable to expect such corroboration, or, for
    that matter, whether corroboration was required at all for Lin’s past
    persecution claim.
    With respect to the IJ’s conclusion that the Household Registration
    Card for Lin was of little value because it listed Lin’s occupation as
    farmer rather than construction worker, Lin was afforded a chance to
    explain. Lin, who lived in a rural part of the Fujian Province, testified
    that he had been a farmer before he worked his construction job. He
    also suggested that the local village officials altered the Household
    Registration Book. Apparently, the IJ rejected this explanation; how-
    ever, the IJ did not explain why a discrepancy on Lin’s individual
    Household Registration Card rendered the Household Registration
    Cards of the children wholly unreliable.
    Moreover, there was other evidence of the children that the IJ did
    not address. Lin offered the pregnancy check-up cards which included
    the children’s dates of birth, a receipt reflecting that Lin paid a fine
    for violating the "birth interval," and a family photo of Lin, his wife
    that, in the absence of an explicit adverse credibility finding, "the appli-
    cant or witness shall have a rebutable presumption of credibility on
    appeal." 8 U.S.C. § 1158(b)(1)(B)(iii). This amended provision does not
    apply in Lin’s case, however.
    14                       LIN-JIAN v. GONZALES
    and the children. Although the IJ noted in passing that the government
    documents offered by Lin were not authenticated, we are not able to
    determine what effect, if any, the lack of authentication had on the
    IJ’s decision. It is also unclear whether the IJ’s conclusion was prem-
    ised solely upon Lin’s failure to comply with 8 C.F.R. § 287.6(b) or
    some other basis. Consular certification pursuant to 8 C.F.R. § 287.6,
    however, is not the exclusive means by which to authenticate such a
    document. See e.g., Yongo v. INS, 
    355 F.3d 27
    , 31 (1st Cir. 2004).
    The record contains a letter from Lin’s counsel indicating that
    "[b]ased on our previous attempt at authentication, it is impossible to
    have [Fujian] Chinese documents authenticated," and explaining that
    ‘The Foreign Affairs Office of Fujian Province DOES NOT accept
    materials directly from lawyers for authentication. . . ." J.A. 319. Fur-
    thermore, Lin points out that the government did not object to the
    documents when they were submitted into evidence. In our view, Lin
    ought to have been given an opportunity to authenticate these docu-
    ments through another method if, in fact, the IJ excluded them under
    8 C.F.R. § 287.6 in the first place. See Gui Cun Liu v. Ashcroft, 
    372 F.3d 529
    , 533 (3d Cir. 2004) ("Lius should have been allowed to
    attempt to prove the authenticity of the abortion certificates through
    other means, especially where . . . attempts to abide by the require-
    ments of § 287.6 failed due to lack of cooperation from government
    officials in the country of alleged persecution.").
    We conclude that the denial of Lin’s claim of past persecution is
    not supported by substantial evidence, and we remand for the IJ to
    consider whether the testimony and other evidence establishes that
    Lin suffered past persecution.
    III.
    Finally, Lin challenges the denial of relief under the CAT on the
    basis that the IJ failed to separate analytically his CAT claim from his
    asylum and withholding claims. To be eligible for relief under the
    CAT, an applicant must demonstrate "that it is more likely than not
    that he or she would be tortured if removed to the proposed country
    of removal." 8 C.F.R. § 208.16(c)(2). He relies on Camara in which
    we concluded that, because the standard for relief under the CAT is
    distinct, an adverse credibility determination that defeats an asylum
    claim cannot alone preclude relief under the CAT. See Camara, 378
    LIN-JIAN v. 
    GONZALES 15 F.3d at 372
    . The rule in Camara, of course, "assumes that the appli-
    cant has presented other evidence to support her 
    claim." 378 F.3d at 372
    . Lin did not submit any evidence suggesting it is more likely than
    not that a Chinese national in his circumstances would be tortured
    upon returning to China. Accordingly, we conclude that the denial of
    relief under the CAT is supported by substantial evidence.
    IV.
    For the foregoing reasons, we grant the petition for review with
    respect to Lin’s claim for asylum and withholding of removal based
    on past persecution, and we remand for further proceedings consistent
    with this opinion. We deny the petition with respect to Lin’s claim
    that he established a well-founded fear of persecution. We also deny
    Lin’s petition for review of the denial of his claim for relief under the
    CAT.
    PETITION GRANTED IN PART AND
    DENIED IN PART
    NIEMEYER, Circuit Judge, concurring in part and dissenting in part:
    With respect to Lin’s request for asylum and withholding of
    removal, I would affirm the Board of Immigration Appeals and the
    Immigration Judge. Because the Board’s decision was grounded on
    findings of fact and credibility determinations, we owe it substantial
    deference, particularly in this area in which the Attorney General is
    given broad discretion. The INA provides that the Board’s findings
    of fact "are conclusive unless any reasonable adjudicator would be
    compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B); see
    also INS v. Elias-Zacarias, 
    502 U.S. 478
    , 481 n.1 (1992). Moreover,
    we defer to credibility findings if they are supported by substantial
    evidence. See Tewabe v. Gonzales, 
    446 F.3d 533
    , 538 (4th Cir. 2006).
    I cannot find on this record that the evidence "compels" findings
    different from those made by the Immigration Judge. See Elias-
    
    Zacarias, 502 U.S. at 481
    n.1 ("To reverse the BIA finding, we must
    find that the evidence not only supports that conclusion, but compels
    it"). Under this deferential standard, we must affirm.
    16                        LIN-JIAN v. GONZALES
    With respect to Lin’s request for relief under the Convention
    Against Torture, I concur in the majority’s opinion.
    SHEDD, Circuit Judge, concurring in part and dissenting in part:
    I concur in parts I, II.A, and II.B.2 of Judge Traxler’s opinion,
    remanding Lin-Jian’s asylum and withholding of removal claims for
    further credibility determinations with respect to past persecution.
    However, I believe that Lin-Jian is also entitled to a new hearing with
    respect to his claims of future persecution. Thus, I dissent from parts
    II.B.1 and III of the opinion.1 Accordingly, I would remand for a more
    thorough examination of Lin-Jian’s claims of both past persecution
    and future persecution as they relate to his requests for asylum, with-
    holding of removal, and the Convention Against Torture.
    In my view, the IJ’s determination that Lin-Jian "[went] in and out
    of hiding" while residing at his uncle’s house fails to address Lin-
    Jian’s explanation for his actions. JA 48. Lin-Jian’s testimony reveals
    that he considered himself in hiding throughout the entire period he
    and his wife resided with his uncle, even though he continued to
    report to work. In addressing Lin-Jian’s behavior during this period,
    the IJ stated, "This makes no sense to this Court. If [Lin-Jian] were
    in fear of being sterilized, as he so claims, then he would not go in
    and out of hiding." JA 48. Without more explanation, the conclusory
    assertion that testimony "makes no sense" is not a specific, cogent
    reason for discrediting it, as required by Figeroa v. INS, 
    886 F.2d 76
    ,
    78 (4th Cir. 1989). Further, hiding does not necessarily require that
    a person never leave his home. The only evidence in the record indi-
    cates that government officials did not have accurate information
    regarding Lin-Jian’s true place of employment.2 The IJ offered no
    1
    Section II.B.1 of Judge Traxler’s opinion asserts that two out of four
    credibility determinations made by the IJ with respect to future persecu-
    tion are supported by substantial evidence. I believe that none of the four
    credibility determinations made by the IJ with respect to future persecu-
    tion are supported by substantial evidence. I address herein only the two
    credibility determinations upon which Judge Traxler and I differ in opin-
    ion.
    2
    Lin-Jian’s official household registry card stated that he worked as a
    farmer in Chun Lau City, but he testified that he actually worked in con-
    LIN-JIAN v. GONZALES                          17
    clear rationale for rejecting this evidence, merely characterizing it as
    "not of great assistance in this case." JA 49. Therefore, in my view,
    the IJ provided no reason, much less a specific and cogent one, for
    the conclusion that Lin-Jian’s continued employment as a construc-
    tion worker constituted "go[ing] in and out of hiding." JA 48.
    Further, the IJ found it inconsistent that Lin-Jian claimed to con-
    tinue to work to support his family yet was able to borrow $10,000
    to come to the United States. The uncontested testimony reveals that
    Lin-Jian was a debtor who borrowed money to flee to a country that
    offered vast economic opportunities. Lin-Jian testified that he was
    "trying to earn some money so [he could] have enough money to pay
    back [sic]." JA 110. As Judge Traxler correctly notes, our case law
    allows immigration judges to exercise common sense in evaluating
    the credibility of an asylum applicant. Tewabe v. Gonzales, 
    446 F.3d 533
    , 540 (4th Cir. 2006). However, a common sense determination —
    like any other credibility determination — must be based on more
    than mere speculation. 
    Id. at 538.
    In my view, it is totally speculative
    to assert that Lin-Jian could have obtained $10,000 to avoid reporting
    to work and earning a wage. Indeed, common sense dictates that a
    person may be able to borrow $10,000 from individuals who expect
    to be repaid, even when those same individuals would not give
    $10,000 to anyone. Accordingly, I believe that this determination
    made by the IJ is not supported by substantial evidence and, therefore,
    is due no deference.
    Thus, in light of "the ordinary ‘remand’ rule" announced in INS v.
    Ventura, 
    537 U.S. 12
    , 18 (2002), I would grant Lin-Jian’s petition for
    review in its entirety and remand for clarification on Lin-Jian’s credi-
    bility regarding both his past persecution and his well-founded fear of
    future persecution.
    struction in Fuzhou City. Though the IJ expressed doubts about the help-
    fulness of the household registry card, she never expressly discredited it.
    Thus, the only conclusion to be drawn from the record is that the
    government-issued card was authentic but inaccurate, which serves to
    corroborate Lin-Jian’s claim that he was able to hide from government
    officials despite his continued employment.
    

Document Info

Docket Number: 05-1693

Filed Date: 5/30/2007

Precedential Status: Precedential

Modified Date: 3/3/2016

Authorities (20)

Yongo v. Immigration & Naturalization Service , 355 F.3d 27 ( 2004 )

Wei Chen v. U.S. Attorney General , 463 F.3d 1228 ( 2006 )

Jin Shui Qiu v. John Ashcroft, United States Department of ... , 329 F.3d 140 ( 2003 )

Cao He Lin, A/K/A Je Ling Chao v. United States Department ... , 428 F.3d 391 ( 2005 )

Xiao Ji Chen v. United States Department of Justice, ... , 471 F.3d 315 ( 2006 )

Gui Cun Liu Xiu Ding Liu v. John Ashcroft, Attorney General ... , 372 F.3d 529 ( 2004 )

Djenaba Camara v. John Ashcroft, in His Official Capacity ... , 378 F.3d 361 ( 2004 )

Qiao Hua Li v. Alberto R. Gonzales, Attorney General , 405 F.3d 171 ( 2005 )

Birhan Tewabe v. Alberto R. Gonzales, Attorney General , 446 F.3d 533 ( 2006 )

Carlos Silva-Rengifo v. Attorney General of the United ... , 473 F.3d 58 ( 2007 )

Ayuk Ako Obale v. Attorney General of the United States. , 453 F.3d 151 ( 2006 )

Yong Hao Chen v. U.S. Immigration & Naturalization Service , 195 F.3d 198 ( 1999 )

Sulaiman Tarrawally v. John Ashcroft, Attorney General of ... , 338 F.3d 180 ( 2003 )

Seydou Toure v. Attorney General of the United States , 443 F.3d 310 ( 2006 )

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Hong Zhang Cao v. Alberto R. Gonzales, United States ... , 442 F.3d 657 ( 2006 )

Wang He v. John Ashcroft, Attorney General , 328 F.3d 593 ( 2003 )

Rafael Figeroa, A/K/A Rafael Najarro-Morales v. U.S. ... , 886 F.2d 76 ( 1989 )

Immigration & Naturalization Service v. Elias-Zacarias , 112 S. Ct. 812 ( 1992 )

Immigration & Naturalization Service v. Ventura , 123 S. Ct. 353 ( 2002 )

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