Ru Lin v. Gonzales , 190 F. App'x 301 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-1678
RU LIN; SHANG CHENG LIN,
Petitioners,
versus
ALBERTO R. GONZALES, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals. (A95-153-949; A95-153-950)
Argued: March 15, 2006 Decided: July 18, 2006
Before MICHAEL, KING, and GREGORY, Circuit Judges.
Petition for review denied by unpublished per curiam opinion.
ARGUED: Gang Zhou, LAW OFFICES OF GANG ZHOU, ESQ., New York, New
York, for Petitioners. Thomas L. Holzman, UNITED STATES DEPARTMENT
OF JUSTICE, Office of Immigration Litigation, Civil Division,
Washington, D.C., for Respondent. ON BRIEF: Peter D. Keisler,
Assistant Attorney General, Civil Division, Donald E. Keener,
Deputy Director, UNITED STATES DEPARTMENT OF JUSTICE, Office of
Immigration Litigation, Civil Division, Washington, D.C., for
Respondent.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Ru Lin (Lin), a native and citizen of China, filed an
application for asylum and other relief. An immigration judge (IJ)
denied Lin’s application on two alternative grounds: that Lin
failed to prove by clear and convincing evidence that the
application was timely filed and that Lin’s testimony was not
credible. The Board of Immigration Appeals (BIA) affirmed, and Lin
petitions this court for review. Lin argues that the IJ violated
her due process rights in determining that she had not proven the
timeliness of her asylum application. Lin further argues that the
IJ’s adverse credibility determination is not supported by
substantial evidence. We find no reversible error in the
administrative proceedings and therefore deny Lin’s petition for
review.
I.
In September 2001 Lin submitted an application for asylum
and withholding of removal under 8 U.S.C. §§ 1158(a)(1), 1231(b)(3)
and for relief under the Convention Against Torture, see 8 C.F.R.
§ 208.16(c). She presented the following evidence at her December
2003 hearing.
Lin met her husband, Shang Cheng Lin, in China in late
1998. In November 1999 she learned that she was pregnant. On
December 1, 1999, the couple married in an unofficial, traditional
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Chinese ceremony. They were not able to obtain an official
marriage certificate because they did not meet the legal age
requirements to be married in China. After the couple was married,
Lin began residing at the home of her in-laws. Lin and her husband
later moved to the home of her in-laws’ friend in Fuzhou City
because they feared that local birth control authorities would
discover Lin’s pregnancy. In early January 2000 two birth control
officers came to Lin’s in-laws’ residence and told the in-laws that
they had discovered Lin’s unofficial marriage. The officials
further said that Lin must report to family planning authorities
for the implantation of an intrauterine device (IUD). Lin’s
mother-in-law told the officials that Lin was still on her
honeymoon but she would relay the instruction when Lin returned.
In mid-March 2000 the authorities returned and, again not finding
Lin there, told the in-laws that if Lin was pregnant without a
legal marriage she should undergo an abortion.
Government officials finally discovered Lin and her
husband at the house in Fuzhou City in June 2000 while conducting
a household registration check. The officers entered the house and
directed everyone to present their personal identification cards.
When the officers saw that Lin did not belong to the household and
was pregnant, they ordered her to come with them. She refused
because she believed that she would have to undergo an abortion.
The officials began to drag her, and her husband attempted to
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intervene. The officials beat Lin’s husband for obstructing
official duties, causing his nose to bleed. The officials took Lin
by car to the town security bureau.
After a few hours birth control officials took Lin from
the security bureau to a hospital where they forced her to undergo
an abortion. About a week after the abortion Lin was forcibly
implanted with an IUD. Less than one year later, in April 2001,
Lin discovered that she was pregnant again, “due to the missing of
the IUD.” J.A. 524. At that time she and her husband decided to
leave China for the United States. They left China on April 20,
2001, and traveled to Toronto where they remained for nineteen days
until entering the United States with the help of smugglers. Lin
presented no proof of when she and her husband entered the United
States, though she asserts that they entered on May 10, 2001.
Lin and her husband agreed to pay the smugglers $50,000
after their arrival in the United States. Lin worked with her
husband at his uncle’s restaurant in Washington, D.C., where she
was paid $1,700 per month and her husband was paid $1,500 per
month. (Lin and her husband resided in Washington, D.C., and New
York City at various points during their stay in the United States,
although it is unclear exactly when and for how long each resided
in each city.) Although Lin worked for about one to two years, she
did not state this employment on her asylum application form.
Lin’s husband testified at the hearing that in the two years they
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had lived in the United States, they paid nearly all of the $50,000
debt owed to the smugglers. They “had some savings” that they used
to repay the debt, J.A. 192, and they sent about $10,000 per year
to China for the repayment. During this time, Lin’s husband rented
lodging in New York for $300 per month. He also bought a diamond
ring worth several hundred dollars for Lin while they were in the
United States.
About seven months after the Lins’ arrival in the United
States, in December 2001, Lin gave birth to a baby boy. When the
boy was five months old he was sent to China to be cared for by
Lin’s mother. Lin explained that they sent the baby to China so
that Lin could earn money and “provide [her] children a better
future.” J.A. 154.
Lin applied for asylum, withholding of removal, and
relief under the Convention Against Torture (CAT) in September
2001, a few months before she gave birth. In a notice dated
October 31, 2001, the Immigration and Naturalization Service (INS)
informed Lin that it would not grant her asylum application but
that she could renew her application before an IJ. The INS
subsequently initiated removal proceedings against Lin and issued
a Notice to Appear (NTA) at a removal hearing. The NTA alleged
that Lin entered the United States “on or about May 10, 2001.”
J.A. 545. At a hearing before an IJ in April 2002, Lin admitted
the factual allegations in the NTA, conceding her removability.
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However, she sought relief from removal by renewing her application
for asylum, withholding of removal, and relief under the CAT. The
IJ held an evidentiary hearing on Lin’s application for relief on
December 10, 2003. At the hearing Lin presented a certificate of
abortion that was allegedly given to her after the forced abortion.
Lin explained at the hearing that her mother-in-law attempted to
authenticate the abortion certificate in China but Chinese
officials refused to notarize the document. The IJ denied Lin’s
application upon finding, first, that she had not presented clear
and convincing evidence that her application was timely filed and,
second, that her testimony was not credible. Lin appealed the
decision to the BIA, and on May 27, 2005, the BIA dismissed the
appeal. This petition for review followed.
II.
Lin argues that the IJ denied her due process in finding
that she failed to present clear and convincing evidence that her
application was filed within one year after her arrival in the
United States. See 8 U.S.C. § 1158(a)(2)(B). In making this
finding, the IJ cited reasons to disbelieve Lin’s assertion that
she arrived in the United States on May 10, 2001. Lin’s husband
testified that they had repaid nearly all of the $50,000 debt to
the smugglers at a rate of about $10,000 per year, indicating that
the Lins were in the United States before their alleged arrival
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date of May 2001. Furthermore, of all the documents submitted,
none placed Lin outside the United States between September 2000
and May 2001. Lin also provided no corroborating evidence of her
presence in Canada prior to entering the United States. Lin argues
that she presented no such evidence at the hearing because the
government had not previously raised the issue. In other words,
Lin contends that she had no notice that she would need to present
evidence concerning the timeliness of her application.
A.
Lin’s due process claim raises a threshold jurisdictional
issue. An alien applying for asylum must demonstrate “by clear and
convincing evidence that the application [for asylum] has been
filed within 1 year after the date of the alien’s arrival in the
United States.” 8 U.S.C. § 1158(a)(2)(B). The Immigration and
Nationality Act (INA) limits judicial review of agency
determinations as to whether the one-year filing requirement has
been met: “No court shall have jurisdiction to review any
determination of the [BIA] under [this provision].” § 1158(a)(3).
Until recently, courts of appeal have uniformly held that
§ 1158(a)(3) deprives them of jurisdiction to review BIA timeliness
determinations such as this one. See Chen v. U.S. Dep’t of
Justice, 434 F.3d 144, 151 (2d Cir. 2006) (collecting cases). The
REAL ID Act of 2005, however, added a new jurisdictional provision
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to the INA that broadens judicial review. The new provision, which
applies retroactively, states: “Nothing in . . . any . . .
provision of this [Act] . . . which limits or eliminates judicial
review[] shall be construed as precluding review of constitutional
claims or questions of law raised upon a petition for review filed
with an appropriate court of appeals in accordance with this
section.” REAL ID Act of 2005, Pub. L. No. 109-13,
§ 106(a)(1)(A)(iii), 119 Stat. 302, 310 (codified at 8 U.S.C.
§ 1252(a)(2)(D)). The REAL ID Act thus confers upon courts of
appeal a narrowly circumscribed jurisdiction to resolve
constitutional claims or questions of law raised by aliens
challenging a timeliness determination. See Higuit v. Gonzales,
433 F.3d 417, 419 (4th Cir. 2006).
Because Lin’s challenge to the IJ’s timeliness
determination is a constitutional one, this court has jurisdiction
to entertain her claim. As other courts have noted, the timeliness
of an alien’s asylum application is usually a question of fact.
See Mehilli v. Gonzales, 433 F.3d 86, 93 (1st Cir. 2005).
Accordingly, in most cases courts of appeal will not have
jurisdiction to review a timeliness determination despite the REAL
ID Act’s jurisdiction-enhancing provision. In this case, however,
Lin does not challenge the IJ’s factual determination as to the
timeliness of her application. Rather, she argues that the
procedures used to assess her asylum claim unconstitutionally
8
denied her the opportunity to present evidence on the timeliness
issue. This claim thus raises a constitutional question that we
have jurisdiction to review.
B.
We turn then to the merits of Lin’s due process claim.
She argues that because the NTA alleges that she entered the United
States on May 10, 2001, and because she conceded the truth of that
factual allegation in an earlier hearing before the IJ, she did not
have notice of the need to submit evidence of her entry date. Due
process requires that an alien who faces removal be provided (1)
notice of the charges against her, (2) a hearing before an
executive or administrative tribunal, and (3) a fair opportunity to
be heard. United States v. El Shami, 434 F.3d 659, 665 (4th Cir.
2005). In order to prevail on a due process challenge to an asylum
hearing, an alien must also demonstrate that she was prejudiced by
the alleged due process violation. Rusu v. INS, 296 F.3d 316, 320
(4th Cir. 2002).
As an initial matter, we note that removal hearings often
consist of two parts: determination of the alien’s removability
followed by consideration of any applications by the alien for
discretionary relief from removal. Richard D. Steel, Steel on
Immigration Law § 14:21 (2d ed. 2005). Whereas the burden of proof
as to the first part, removability, rests generally with the
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government, it is well-settled that the burden of proof as to the
second part, discretionary relief from removal, rests with the
alien. 8 U.S.C. § 1229a(c)(4). In cases such as this one, where
removal proceedings are initiated by an asylum application and
there is no dispute that an alien is removable, removability is
often determined by the aliens’ admission of the facts alleged in
the NTA. Steel, supra, § 14.21. An alien will make such an
admission so that the removal proceedings can move on to the real
issue at hand: whether the alien is eligible for discretionary
relief from removal. Id. Accordingly, early in the proceedings in
this case, Lin admitted the facts alleged in the NTA and conceded
her removability. This allowed the parties to focus on her
application for discretionary relief, the main issue in her case.
We conclude that Lin had fair notice of the need to
present evidence to prove that she met the one-year filing
requirement. The statute governing asylum procedures unequivocally
states that an alien is not eligible for asylum unless she
“demonstrates by clear and convincing evidence that the application
has been filed within 1 year after the date of [her] arrival in the
United States.” 8 U.S.C. § 1158(a)(2)(B). Any asylum applicant is
thus put on notice that she bears the burden of proving her date of
entry.
It is true that the NTA alleged that Lin entered the
United States on or about May 10, 2001, and that Lin conceded the
10
truth of the facts alleged in the NTA at her initial hearing. But
Lin’s concession did not necessarily relieve her of her burden of
proving her entry date for the purpose of her asylum application.
The regulations governing removal proceedings are silent as to the
evidentiary effect of an alien’s concession. Although the
regulations contemplate that parties will stipulate to certain
facts in order to “simplify and organize the [removal] proceeding,”
8 C.F.R. § 1003.21, there is no indication that Lin and the
government entered into any stipulation here. In civil litigation,
[a] requirement for evidence ceases to apply where the
opponent, by express statement made for the purpose of
trial, has (1) conceded the truth of a fact, (2) or,
assented to a specific mode of evidencing it, (3) or,
waived the introduction of a specific piece of evidence,
(4) or, waived the prohibition or limited conditions of
a specific rule of evidence.
22 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice
and Procedure § 5194 (1978 & Supp. 2005) (quoting Wigmore, Code of
Evidence 542 (3d ed. 1942)). Using this rule for guidance, we
doubt that Lin’s admission relieved her of her burden of proving
the timeliness of her asylum application. The concession relieved
only her opponent (the government) of its burden to present
evidence to establish her removability. Lin’s concession did not
mean, however, that the government (or the IJ) was bound to treat
the alleged May 10, 2001, entry date as conclusive for the purpose
of Lin’s asylum application. Cf. 8A Charles Allen Wright, Arthur
R. Miller & Richard L. Marcus, Federal Practice and Procedure
11
§ 2264 (2d ed. 1994) (explaining that although an admission made
pursuant to Federal Rule of Civil Procedure 36 binds the party who
made it, the admission does not bind the party who requested it).
By way of comparison, if Lin and the government had instead entered
into a stipulation regarding her entry date, she presumably would
have been relieved of her burden because her opponent would have
“waived the introduction of a specific piece of evidence.” But
because Lin and the government did not stipulate to her date of
entry (that is, the government did not waive the introduction of
evidence as to the timeliness of her asylum application), she
should not have assumed that there was no need to present evidence
as to her entry date.
Even if Lin was justified in believing that she did not
need to present evidence about her entry date at the hearing, her
due process claim would not succeed. Near the end of her hearing,
it became apparent that the IJ expected Lin to submit evidence as
to her entry date. At this point, Lin could have moved for a
continuance of the hearing so that she could collect and present
such evidence, see 8 C.F.R. § 1003.29, but she did not make such a
motion. When the IJ asked Lin’s lawyer whether she had any
evidence to prove her entry date, Lin’s lawyer simply responded,
“Certainly, at this point, [we] do not because that issue has never
been raised before.” J.A. 219. Similarly, Lin could have later
filed a motion to reopen the proceedings, see 8 C.F.R. § 1003.23,
12
in order to present evidence of her entry date. Although the
agency has broad discretion to honor or deny these requests, the
availability of these procedures satisfies us that Lin had a fair
opportunity to be heard.
Lin attempts to bolster her due process claim by arguing
that the government failed to give her the notice required by 8
C.F.R. § 1003.30. This regulation provides that “[a]t any time
during deportation or removal proceedings, additional . . . factual
allegations may be lodged by the [INS] in writing. The alien shall
be served with a copy of these additional . . . allegations and the
IJ shall read them to the alien.” 8 C.F.R. § 1003.30. The problem
with this argument is that the government made no “additional”
factual allegations against Lin during the course of her removal
proceedings that would entitle her to notice. The government’s
allegation is, and always was, that Lin entered the United States
on or around May 10, 2001. If there is any complaint to be made
about the government’s conduct in this case, it is that the
government did not waive the requirement that Lin prove the
timeliness of her asylum application in light of its factual
allegation as to her date of entry. But Lin argues something else,
specifically, that the government was obligated to give her some
kind of notice that timeliness was going to be an issue at the
hearing. See J.A. 220 (“I don’t know how this issue . . . could be
raised [at] the last moment and never raised before . . . .”). It
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is of no moment, however, that the government did not raise the
issue of her asylum application’s timeliness earlier in the
proceedings because, as explained above, the burden of proof
remained on Lin throughout the proceedings to prove her eligibility
for asylum.
Finally, Lin’s due process claim, even if otherwise
meritorious, would fail because she cannot show prejudice. See
Rusu, 296 F.3d at 320. The IJ made an adverse credibility
determination, discussed below, that constituted an independent
alternative ground for rejecting Lin’s asylum application. In
other words, Lin would not have been granted asylum even if her
application had been timely filed because the IJ did not credit her
overall testimony. Lin’s due process challenge to the IJ’s
timeliness determination therefore fails.
III.
Lin next argues that the BIA erred by finding that the IJ
made an adverse credibility determination. According to Lin, the
IJ made no explicit credibility finding and the BIA therefore
violated Lin’s due process rights when it made an adverse
credibility determination for the first time on appeal. This
argument is unfounded because the IJ did, in fact, make an explicit
adverse credibility finding. The IJ stated, “[W]e do not believe
the respondent and we make an adverse credibility finding.” J.A.
14
63. The BIA did not commit a due process violation in proceeding
on the basis that the IJ had made an adverse credibility
determination.
IV.
Finally, Lin argues that the IJ erred in finding that her
testimony was not credible. We must defer to an IJ’s adverse
credibility determination that is supported by substantial evidence
on the record “considered as a whole.” Blanco de Belbruno v.
Ashcroft, 362 F.3d 272, 278 (4th Cir. 2004) (quoting INS v. Elias-
Zacarias, 502 U.S. 478, 481 (1992)). This deference is broad but
not absolute: an IJ who rejects a witness’s testimony because in
his or her judgment it lacks credibility should offer a specific,
cogent reason for his or her disbelief. Camara v. Ashcroft, 378
F.3d 361, 367 (4th Cir. 2004). “Examples of specific and cogent
reasons ‘include inconsistent statements, contradictory evidence,
and inherently improbable testimony; [in particular,] where these
circumstances exist in view of the background evidence on country
conditions, it is appropriate for an Immigration Judge to make an
adverse credibility determination on such a basis.’” Tewabe v.
Gonzales, 446 F.3d 533, 538 (4th Cir. 2006) (alteration in
original) (quoting In re S-M-J-, 21 I. & N. Dec. 722, 729, 1997 WL
80984 (BIA 1997) (en banc)). If the IJ’s adverse credibility
determination is not based on a specific, cogent reason, but is
15
instead based on speculation, conjecture, or an otherwise
unsupported personal opinion, it cannot be upheld because it will
not have been supported by substantial evidence. Id.The IJ cited a number of reasons for discrediting Lin’s
testimony. For instance, the IJ found that the documents Lin
submitted as proof of her abortion were unreliable because they
were not authenticated. The IJ also cited the State Department
country condition report observing that documentation from the
Fuzhou region “is subject to widespread fabrication and fraud.
This includes documents that purportedly verify . . . births and
birth control measures . . . .” J.A. 320; see also J.A. 311 (“The
U.S. Embassy and Consulates General are unaware of any so-called
‘abortion certificates,’ which often are presented as part of
asylum applications as evidence a forced abortion.”). The IJ also
observed that Lin’s medical records relating to the birth of her
child did not document her alleged prior pregnancy and abortion.
According to the IJ, the “medical records no doubt would discuss
what she reported to the doctor about whether she had had any prior
pregnancies.” J.A. 59. In addition, the IJ discounted Lin’s claim
that her IUD was “lost,” J.A. 149, because the claim did not appear
consistent with common experience, and Lin offered no evidence to
explain how “an IUD could fall out of a woman’s body without her
noticing it,” J.A. 47. The IJ also had a hard time accepting that
Lin was subjected to a forced abortion during the eighth month of
16
her pregnancy because there was no evidence discussed at the
hearing that late-term abortions were performed in China. The IJ
further noted some inconsistencies and omissions in Lin’s asylum
application with respect to her address and employment.
We must defer to the IJ’s adverse credibility finding
here because it is sufficiently supported by specific, cogent
reasons based on the record as a whole. To be sure, certain
aspects of the IJ’s credibility determination are problematic. For
instance, the IJ cited a lack of evidence of forced late-term
abortions in China when, in fact, the State Department report in
the record cites examples of such practices in China. In addition,
the IJ cited a lack of pre-natal medical records confirming prior
pregnancies, but Lin submitted a document that arguably documents
a prior pregnancy. On balance, however, the IJ’s credibility
determination deserves our deference because it is supported by
substantial evidence on the record “considered as a whole.” Blanco
de Belbruno, 362 F.3d at 278. For instance, the IJ gave specific
and cogent reasons for doubting that Lin had been implanted with an
IUD. The lack of reference to an IUD in Lin’s prenatal medical
records suggests that she never had the device. Indeed, Lin’s
assertion that the IUD was later “lost” borders on inherent
implausibility. The IJ’s unwillingness to fully credit the
abortion certification is also defensible in light of information
in the State Department report suggesting that such documents are
17
fraudulent. Furthermore, the IJ noted that the Lin’s husband’s
testimony about their length of stay in the United States and their
efforts to repay the smuggling debt simply did not add up: there
is no way they could have repaid $50,000 by the time of the hearing
given the testimony that they paid only about $10,000 per year.
Lin’s appellate brief argues that the IJ misunderstood this
testimony because Lin and her husband, in fact, each paid about
$10,000 a year. Although the evidence in the record concerning
repayment of the debt could be clearer, it is sufficient to support
the IJ’s factual determination that the Lins together paid $10,000
per year. Finally, the IJ observed a significant inconsistency in
the evidence concerning Lin’s employment. Lin did not list any
employment on her asylum application. When the IJ asked Lin at her
asylum hearing whether everything in her application was “true,
correct and up-to-date,” Lin indicated that it was. J.A. 114. She
later testified, however, that she had actually been working for
the past year or two. Because the IJ cited these specific, cogent
reasons for disbelieving Lin’s testimony, we must conclude that the
IJ’s adverse credibility determination is supported by substantial
evidence on the record as a whole.
V.
For the foregoing reasons, we conclude that the IJ did
not violate Lin’s due process rights in determining that Lin failed
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to prove by clear and convincing evidence that her application was
timely filed. We further conclude that the IJ’s adverse
credibility finding is supported by substantial evidence. Lin’s
petition for review is therefore denied.
PETITION FOR REVIEW DENIED
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