Lin v. Lynch , 813 F.3d 122 ( 2016 )

12-2163
Lin v. Lynch
BIA
Brennan, IJ
A 088 517 180
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2015
Argued: August 25, 2015 Decided: February 11, 2016
Docket No. 12-2163
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WU LIN,
Petitioner,
v.
LORETTA E. LYNCH, United States Attorney General,
Respondent.
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Before: NEWMAN, WALKER, and JACOBS, Circuit Judges.
Petition for review of the April 30, 2012, decision of
the Board of Immigration Appeals, reversing a decision of an
Immigration Judge that had approved an application for
asylum.
Petition granted and case remanded. Judge Jacobs
concurs in the grant of the petition for review and remand
to the BIA for further consideration with a separate
opinion.
1
Gerald Karikari, Law Offices of
Gerald Karikari, P.C., New
York, NY, for Petitioner.
Ashley Y. Martin, United States
Department of Justice, (Stuart
F. Delery, Principal Deputy
Assistant Attorney General,
Mary Jane Candaux, Assistant
Director, on the brief),
Washington, DC, for Respondent.
JON O. NEWMAN, Circuit Judge.
This petition to review a decision of the Board of
Immigration Appeals (“BIA”) requires consideration of the
standard of review for a court of appeals considering the
BIA’s determination that an Immigration Judge’s (“IJ”)
findings of fact are clearly erroneous. This issue arises
on a petition by Wu Lin for review of the BIA’s decision of
April 30, 2012, denying his application for asylum. We
conclude that, although the BIA recognized its obligation to
apply the “clear error” standard of review to the IJ’s
findings of fact, it erred in its application of that
standard and provided an insufficient basis for rejecting
the IJ’s findings. We therefore grant the petition for
review and remand to the BIA for further consideration.
2
Background
Wu Lin is a native and citizen of the People’s Republic
of China. In August 2007 he entered the United States
without authorization. Lin was apprehended in Texas a few
days after his entry. In September 2007, an official of the
Department of Homeland Security (“DHS”) conducted a so-
called “border interview” to determine whether Lin
“indicate[d] either an intention to apply for asylum . . .
or a fear of persecution,” Immigration and Nationality Act
§ 235(b)(1)(A)(I), 8 U.S.C. § 1225(b)(1)(A)(i). Under oath,
Lin stated that he would be imprisoned if returned to China.
Asked why, he answered, “I was working for the birth control
department in China and I let two women go . . . without
having the procedure.”
As a result of the border interview, Lin was referred
for a so-called “credible fear” interview conducted in
September 2007 by an asylum officer to determine whether Lin
“ha[d] a credible fear of persecution,” 8
U.S.C. § 1225(b)(1)(B)(ii), which means “a significant
possibility . . . that the alien could establish eligibility
for asylum,” 8 U.S.C. § 1225(b)(1)(B)(v). Lin testified
that his reason for believing that he would be persecuted if
returned to China was that he was arrested and fined when he
3
“went to reason with the people in the family planning”
after they forced his girlfriend to have an abortion. The
asylum officer asked Lin why he had told the Border Patrol
that he feared imprisonment because he had helped two women
escape from the birth control department. He answered,
“[W]hen I was there with them, they told me I did not have
to say me [sic] the whole story there, but to tell it to the
immigration officer.” Lin added, “I released two women that
were nine months pregnant.
Lin filed a written application for asylum in July
2008. Abandoning his claims made at the border and credible
fear interviews, Lin wrote that he had been persecuted by
the Chinese government by beatings and detention because of
his practice of Falun Gong. He explained the recantation of
his previous claims by stating that he had been instructed
by the snakeheads (smugglers) on the way to the United
States to say certain things and that if he did not say what
he was told he would be sent back to China and have to pay
the smuggling fees. Lin’s testimony before the IJ repeated
what he had written in his asylum application.
In an oral decision, the IJ credited Lin’s testimony.
He found that Lin had “reasonably explained” his previous
versions and was “satisfied” with Lin’s explanation.“
4
[T]his is an example,” the IJ stated, “of the power of the
snakeheads to whom he owed money and to whom he owed his
presence and entry into the United States.” Then, evidently
contemplating an appeal by DHS, the IJ added, “This is an
example for any reviewing Court of the power of the
snakeheads over [asylum seekers] who are coming to America.”
The IJ said he “g[a]ve great weight to the fact that [Lin]
came forward voluntarily to withdraw those statements and to
explain why he said those statements.” With respect to
Lin’s current claim, the IJ said he credited Lin’s practice
of Falun Gong and the detention and beatings he had suffered
while detained in China. The IJ also found that Lin had
“produced reasonably available evidence to support his
claim,” referring to a letter from Lin’s father, a letter
from his co-practitioner in China, a copy of the dismissal
notice from his employer, a sworn affidavit from his uncle,
and several identity documents. The IJ exercised his
discretion to grant Lin asylum.
DHS appealed the IJ’s decision to the BIA. The BIA
began its opinion by recognizing that its regulations
required it to review an IJ’s findings of fact under the
“clearly erroneous” standard. See 8 C.F.R.
5
§ 1003.1(d)(3)(i). The BIA stated, “There is clear error in
a factual finding when we are left with the definite and
firm conviction that a mistake has been made.” In re Wu Lin,
No. A088 517 180, at 1 (B.I.A. Apr. 30, 2012). The BIA
ruled that the IJ had “committed clear error in crediting
[Lin’s] explanation for his repeated lies to immigration
officials.” In re Wu Lin, No. A088 517 180, at 2. The BIA
also stated, “[W]e find clear error in the [IJ’s]
determination that [Lin’s] third asylum claim based on his
practice of Falun Gong was credible.” Id. at 3. Based on
these rulings, the BIA reversed the IJ’s grant of asylum.
We consider the BIA’s reasons for these rulings below.
Discussion
In nearly all the petitions for review of asylum claims
that reach this Court, the BIA has affirmed an IJ’s denial
of asylum. In the pending petition for review, however, the
BIA, applying the “clear error” standard of review, has
reversed an IJ’s grant of asylum.1 The initial issue for us
is what standard of review should we apply to the BIA’s
ruling that an IJ’s findings of fact are clearly erroneous.
1
If the BIA grants asylum, either by affirming an IJ’s
grant of asylum or by reversing an IJ’s denial of asylum,
DHS is not authorized to seek review in this Court.
6
This is an issue that rarely arises in judicial review
of agency decisions because an agency’s use of a “clear
error” standard to review findings of fact is itself rare.
Under the Administrative Procedures Act, “[o]n appeal from
or review of the initial decision, the agency has all the
powers which it would have in making the initial decision
except as it may limit the issues on notice or by rule.” 5
U.S.C. § 557(b). Thus, most agencies reviewing findings of
fact are entitled to find facts, i.e., “use the powers
[they] would have in making the initial decision.”
However, the BIA is subject to a different regime. The
Department of Justice (“DOJ”), acting pursuant to the
“except” clause of section 557(b), has required the BIA,
which is a constituent entity within DOJ,2 to review an IJ’s
findings of fact under the “clear error” standard: “Facts
determined by the immigration judge, including findings as to
credibility of testimony, shall be reviewed only to determine
whether the findings of the immigration judge are clearly
erroneous.” 8 C.F.R. § 1003.1(d)(3)(i). DOJ also prohibited
the BIA from making findings of fact: “Except for taking
administrative notice of commonly known facts such as
2
“There shall be in the Department of Justice a Board
of Immigration Appeals . . . .” 8 C.F.R. § 1003.1(a)(i).
7
current events or the contents of official documents, the
Board will not engage in factfinding in the course of
deciding appeals.” Id. § 1003.1(d)(3)(iv).
DOJ has explained that “[t]he [Justice] Department’s
adoption of the ‘clearly erroneous’ standard encompasses
the standards now commonly used by the federal courts with
respect to appellate court review of findings of fact made
by a trial court.” Board of Immigration Appeals: Procedural
Reforms to Improve Case Management, 67 Fed. Reg. 54878-01,
54890 (Aug. 26, 2002). Those standards are set forth in
Rule 52(a)(6) of the Federal Rules of Civil Procedure:
“Findings of fact, whether based on oral or other
evidence, must not be set aside unless clearly
erroneous, and the reviewing court must give due
regard to the trial court's opportunity to judge
the witnesses' credibility.”
So when the BIA reviews an IJ’s findings of fact, it must
accept them unless they are clearly erroneous, and the BIA
must give “due regard” to the IJ’s opportunity to judge a
witness’s credibility.
Before determining how we should review a BIA ruling
that an IJ’s findings of fact are clearly erroneous, we
endeavor to consider what “clear error” review means. We
are not encouraged in this task by Judge Learned Hand’s
8
observation that “[i]t is idle to try to define the meaning
of the phrase, ‘clearly erroneous,’” United States v.
Aluminum Co. of America, 148 F.2d 416, 433 (2d Cir. 1945),
or the Supreme Court’s later acknowledgment that “the
meaning of the phrase ‘clearly erroneous’ is not
immediately apparent,” Anderson v. City of Bessemer, 470
U.S. 564, 573 (1985).
The most frequently expressed statement of the meaning
of “clear error” review was first provided by the Supreme
Court in United States v. U.S. Gypsum Co., 333 U.S. 364,
395 (1948): “A finding is ‘clearly erroneous’ when although
there is evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm
conviction that a mistake has been committed.” The Court
has repeatedly used this formulation. See, e.g., Anderson,
470 U.S. at 573; McAllister v. United States, 348 U.S. 19,
20 (1954). The BIA itself repeated a portion of this
formulation when it rejected, under the “clear error”
standard, the IJ’s findings in this case. “There is clear
error in a factual finding when we are left with the
definite and firm conviction that a mistake has been made.”
In re Wu Lin, No. A088 517 180, at 1 (B.I.A. Apr. 30,
2012).
9
The “definite-and-firm-conviction” formulation provides
little, if any, guidance as to the circumstances that would
permit a reviewing court to conclude that a factfinder has
committed “clear error.” Indeed, the formulation can be
misleading if it is misunderstood to mean that a reviewing
court can reject a finding of fact simply because the court
subjectively believes that the factfinder was mistaken.
The formulation purports to be an explanation of when a
factfinder has committed “clear error,” but the key
question is what constitutes “clear error.”
The Supreme Court’s most quoted attempt to explain
“clear error” identifies what the phrase does not mean:
“[C]ertain general principles governing the
exercise of the appellate court’s power to
overturn findings of a district court may be
derived from our cases. . . . This standard
[“clear error” review] plainly does not entitle a
reviewing court to reverse the finding of the
trier of fact simply because it is convinced that
it would have decided the case differently. The
reviewing court oversteps the bounds of its duty
under Rule 52(a) if it undertakes to duplicate the
role of the lower court. In applying the clearly
erroneous standard to the findings of a district
court sitting without a jury, appellate courts
must constantly have in mind that their function
is not to decide factual issues de novo. If the
district court’s account of the evidence is
plausible in light of the record viewed in its
entirety, the court of appeals may not reverse it
even though convinced that had it been sitting as
the trier of fact, it would have weighed the
evidence differently.”
10
Anderson, 470 U.S. at 573-74 (citation and internal
quotation marks omitted).
Some examples of clear error can be readily imagined.
There might be no evidence at all to support a finding of
fact. Or the finding might be controverted by indisputable
evidence, as when indisputable evidence establishes that an
asylum witness claiming to have been beaten was at a
location far from where he claimed the beating occurred.
Of course, such extreme examples of clear error are not
likely to arise. A more likely example might arise where
an IJ has obviously misunderstood the testimony of a
witness and based a finding of fact on that
misunderstanding. Situations might also arise where the
evidence opposed to the claimant’s version, though not
indisputable, has overwhelming persuasive force. How
overwhelming the opposing evidence must be will often be a
close question for the entity applying clear error review
and for the court reviewing a clear error conclusion. What
is not in doubt, however, is that the phrase “clear error”
is to be taken literally: the error must be clear.
One aspect of “clear error” review that has been
generally recognized is that it is less deferential to a
factfinder than “substantial evidence” review. In
11
Dickinson v. Zurko, 527 U.S. 150, 152-53 (1999), Justice
Breyer explained a significant difference between appellate
court application of the “clear error” standard to a bench
trial judge’s finding of fact (what he called “court/court
review”) and its application of the “substantial evidence”
standard to an agency’s finding of fact (what he called
“court/agency” review). “Traditionally, this court/court
standard of review has been considered somewhat stricter
(i.e., allowing somewhat closer judicial review) than the
APA's court/agency standards.” Id. at 153 (citing 2 Kenneth
Culp Davis & Richard J. Pierce, Jr., Administrative Law
Treatise § 11.2 (3d ed. 1994)). In other words, even if
there is substantial evidence to support a finding of fact,
a reviewing court or an agency like the BIA can conclude,
with sufficient justification, that a “clear error” has
been committed.3 A leading treatise agrees: “If the
3
In Easley v. Cromartie, 532 U.S. 234, 246-57 (2001),
the Supreme Court, reviewing for clear error the findings
of fact of a three-judge district court in a
reapportionment case, made a meticulous analysis of the
testimony of several witnesses before concluding that clear
error had occurred. The Court’s approach might have been
influenced by the Court’s reluctance to interfere with a
state legislature’s reapportionment decisions. “The Court
also has made clear that the underlying districting
decision is one that ordinarily falls within a
legislature’s sphere of competence.” Id. at 242.
12
findings of fact are against the clear weight of the
evidence or the appellate court otherwise reaches a
definite and firm conviction that a mistake has been made
by the trial court, the appellate court will set the
findings aside even though there is evidence supporting
them that, by itself, would be considered substantial.” 9C
Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure § 2585 (3d ed. 2007). With this
understanding of “clear error” review, we now turn to how
a court reviews a court or an agency decision rejecting a
finding of fact upon “clear error” review.
The most familiar context in which an appellate court
reviews another tribunal’s application of a “clear error”
standard to a finding of fact is the Supreme Court’s review
of a court of appeals decision that a district court’s
finding of fact is clearly erroneous. In this three-
layered context, the Supreme Court puts itself in the shoes
of the court of appeals and makes a de novo decision as to
whether it has a definite and firm conviction that a
mistake has been made. See Anderson, 470 U.S. at 577;
13
McAllister, 348 U.S. at 20-21.4 However, in the three-
layered context of court review of an agency’s application
of the “clear error” standard to an IJ’s finding of fact,
we have no authority to displace the BIA and apply the
“clear error” standard to an IJ’s finding of fact.
Courts of appeals conduct three-tiered court/agency
review in other contexts that are somewhat analogous to our
review of the BIA’s application of the “clear error”
standard, but these contexts are sufficiently different to
be unhelpful to our inquiry. The first concerns the Tax
Court. The Tax Court by rule has adopted a highly
deferential standard for reviewing a Special Trial Judge’s
recommended findings of fact. “[T]he findings of fact
recommended by the Special Trial Judge shall be presumed to
be correct.” Tax Ct. R. 183(d). Whether or not this
standard is as deferential as “clear error” review, Courts
of Appeals are statutorily instructed to review a Tax
4
Where the Supreme Court reviews a decision of a court
of appeals that has upheld a finding of a trial court, the
Court generally applies what it calls “the two-court rule,”
declining to reexamine the finding. See, e.g., Graver Tank
& Mfg. Co. v. Linde Air Products Co., 336 U.S. 271, 275
(1949) (“A court of law, such as this Court is, . . .
cannot undertake to review concurrent findings of fact by
two courts below in the absence of a very obvious and
exceptional showing of error.”).
14
Court’s findings “to the same extent as decisions of the
district courts in civil actions tried without a jury,” 26
U.S.C. § 7482(a)(1), i.e., under the “clear error”
standard. We have no similar authority with respect to BIA
application of the “clear error” standard.
The second context concerns the Court of Appeals for
Veterans’ Claims. That Court applies “clear error” review
to a factual determination of the Board of Veterans’
Appeals. See 38 U.S.C. § 7261(a)(4). However, the Court of
Appeals for the Federal Circuit, which reviews rulings of
the Court of Appeals for Veterans’ Claims, is explicitly
precluded from reviewing a challenge to a factual
determination. See 38 U.S.C. § 7292(d)(2).
With no special guidance from these two possible
analogies, we are left with our traditional approach to
reviewing a ruling of law – de novo review. The BIA’s
application of “clear error” review is the application of
a legal standard to findings of fact and as such is a
ruling of law. See Kabba v. Mukasey, 530 F.3d 1239, 1245
(10th Cir. 2008). However, de novo review does not mean
that we can redetermine de novo whether we think the IJ has
committed clear error. It means that we must determine
15
whether the BIA has provided sufficient justification for
its conclusion that the IJ has committed clear error. It
also means that we must make sure that the BIA has not
violated the prohibition against making its own findings of
fact.
Sometimes the distinction between a BIA’s permissible
ruling that an IJ has committed clear error and the BIA’s
prohibited finding of fact might appear to turn on how the
BIA explains its decision. If the BIA says it “finds” that
the evidence establishes the opposite of what an IJ has
found, the BIA would appear to be finding a fact, which it
is not permitted to do. On the other hand, if the BIA says
that, after considering the entire record, it concludes
that the IJ has committed clear error in making a finding
of fact and provides a legally sufficient explanation for
its conclusion, its ruling will ordinarily be upheld.
We do not mean to imply that a BIA ruling “finding” a
fact to be the opposite of what an IJ had found must always
be rejected merely because the BIA used the terminology of
factfinding. Reviewing courts sometimes say that they
“find” that something is so, e.g., that a party’s legal
contention is invalid, even though they are not finding a
16
fact but, instead, stating a ruling of law. If, for
example, a reviewing court ascertains as a matter of law
that the evidentiary record cannot sustain an IJ’s factual
finding and therefore compels the conclusion reached by the
BIA, rejecting the BIA’s ruling merely because the BIA used
the wrong terminology in expressing a legally compelled
result would be senseless. At the same time, the BIA
should be mindful that careless use of factfinding
terminology when its intention is to rule, with
explanation, that an IJ’s factfinding was clearly erroneous
can cause confusion and unnecessary remands.
Just as we require an IJ to give “specific, cogent
reasons” to support rulings, see Cao He Lin v. U.S. Dep’t
of Justice, 428 F.3d 391, 400 (2d Cir. 2005) (internal
quotation marks omitted), we expect the BIA to supply
cogent reasons for its rulings. See Vitug v. Holder, 723
F.3d 1056, 1063 (9th Cir. 2013) (“Under clear error review,
if the BIA rejects a finding of the IJ, . . . the BIA [is]
obligated to explain why the IJ clearly erred in so
finding.”).
The three cases in this Circuit reversing the BIA for
an invalid application of the “clear error” standard
17
reflect this approach. Our first encounter with a BIA
decision ruling that an IJ’s finding of credibility was
clearly erroneous was Fen Yong Chen v. Bureau of
Citizenship & Immigration Services, 470 F.3d 509 (2d Cir.
2006). We rejected the BIA’s ruling. See id. at 514-15.
We noted that, although the IJ had explained why he
discounted inconsistencies between the applicant’s hearing
testimony and his prior credible fear interview, the BIA
“gave no explanation for why it rejected the IJ’s reasons
for discounting [that] interview.” Id. at 514. The BIA, we
ruled, “started anew, conducting its own credibility
analysis.” Id.
Similarly, in Sherpa v. Holder, 374 F. App’x 104 (2d
Cir. 2010), where the BIA rejected an IJ’s finding that the
applicant was credible, we rejected the BIA’s ruling
because the BIA had “reached its own credibility
determination.” Id. at 105. In Padmore v. Holder, 609 F.3d
62 (2d Cir. 2010), we ruled that the BIA had engaged in
impermissible factfinding in determining, contrary to an
IJ’s ruling, that cancellation of removal was not
18
warranted. See id. at 68-69.5
In the pending matter, the IJ found as a fact that Lin
was credible in testifying about his persecution because of
his Falun Gong activity. The IJ also was “satisfied” with
Lin’s explanation for his false statements at the border
and credible fear interviews. The IJ specifically credited
Lin’s testimony that he feared being returned to China and
forfeiting money unless he gave the two prior statements as
instructed by the snakeheads. That threat, the IJ found,
“is an example . . . of the power of the snakeheads.”
In rejecting the IJ’s findings, the BIA first stated
the indisputable fact that Lin had presented three
different asylum claims, i.e., his release of two women at
the family planning office, his opposition to his
girlfriend’s abortion, and his persecution for practicing
Falun Gong.
The BIA ruled that Lin’s explanations for the first two
claims, which he recanted at his hearing, “are not
5
In Shao v. Mukasey, 546 F.3d 138 (2d Cir. 2008), we
found no error in the BIA’s finding of subsidiary facts
bearing on whether Ji Wen Shi, one of the three asylum
claimants, had an objectively reasonable fear of
persecution because the parties had consented to
factfinding by introducing new evidence before the BIA. See
id. at 162.
19
plausible or consistent.” The BIA offered two reasons for
this ruling. First, “[Lin] has not demonstrated that he
would not have had to pay the smuggling fees regardless of
whether he was successful on his asylum claim.” [Id.] The
BIA gave no indication as to how Lin might have
demonstrated that the snakeheads would have delivered on
their threat. We cannot imagine that the BIA expected Lin
to call the snakeheads as witnesses. There is no
indication that their whereabouts at the time of the
hearing was known. More important, the issue, pertinent to
Lin’s credibility, was not whether the snakeheads would
have carried out their threat, but whether Lin believed
that they would, and gave his false versions because of
that belief.
We can readily understand the BIA’s skepticism that Lin
was being truthful in stating his third reason for seeking
asylum after stating, at his border and credible fear
interviews, two reasons that were false. Prior false
testimony is often a basis for disbelieving a witness’s
later testimony. But the issue for the BIA was not whether
Lin was telling the truth when he gave his third reason for
seeking asylum. That was an issue of fact for the IJ. The
20
issue for the BIA was whether it had sufficient
justification for ruling that the IJ had clearly erred in
finding that Lin’s third reason was truthful.
The IJ not only found that the third reason was
truthful, but explained why he so found. First, he counted
in Lin’s favor the fact that Lin came forward and
acknowledged the falsity of his two prior reasons. Second,
he deemed entirely plausible Lin’s explanation that he gave
false reasons because he was threatened by the snakeheads
to do so. See Kabba, 530 F.3d at 1246 (“[T]he IJ found that
[the claimant] offered a legitimate explanation. This was
a factual finding entitled to deference on review.”).
Third, he considered Lin’s demeanor supportive of the
truthfulness of his hearing testimony. See Fed. R. Civ. P.
52(a) (“[T]he reviewing court must give due regard to the
trial court's opportunity to judge the witnesses'
credibility.”).
In view of the IJ’s explanation for his finding, the
BIA did not provide us, as a reviewing court, with a
supportable basis for its conclusion that Lin’s explanation
for his initial false testimony was not “plausible” and its
consequent ruling that the IJ committed clear error.
21
The BIA also deemed Lin’s explanations “inconsistent.”
The first example of a claimed inconsistency was that when
asked to explain his false versions before the IJ, he first
testified that he “had no idea about American laws” when he
was apprehended at the border, but later testified that he
was informed about asylum law before the critical fear
interview. These statements, however, are not
inconsistent. Nothing in the record undermines Lin’s
unsurprising testimony that he knew nothing about American
law when he was apprehended at the border. That lack of
knowledge is not inconsistent with his testimony that after
his release from custody, which preceded his credible fear
interview, he “consult[ed] with a lawyer” and “then I
realized American law protects people from being
persecuted.” Thus, the record refutes the BIA’s first
claimed inconsistency.
The BIA’s second example of a claimed inconsistency in
Lin’s testimony was his statement that he did not talk with
his attorney while he was in custody and his later
statement that he was represented by an attorney while in
custody. Again, there is no inconsistency. It is
regrettable, but not uncommon, that a person in custody has
not spoken to his lawyer until after his release from
22
custody. Lin also testified that, while in custody, the
lawyer’s “assistant telephone[d] me,” but the record does
not indicate that the assistant was a lawyer. The BIA’s
second claimed inconsistency is not supported by the
record.
On this record, the BIA’s “clear error” rejection of
the IJ’s findings is not adequately supported and must
itself be rejected. On remand, the BIA will have to either
accept the IJ’s findings or, if it can, provide a
supportable basis for rejecting them.
Conclusion
The petition for review is granted, and the case is
remanded for further consideration consistent with this
opinion.
23
DENNIS JACOBS, Circuit Judge, concurring in the grant of the petition for review
and remand to the BIA for further consideration:
Petitioner has advanced three successive reasons for needing asylum.
Each is an archetypal asylum narrative: (1) helping women escape an abortion
clinic, (2) opposing his girlfriend’s forced abortion, (3) practicing Falun Gong.
The immigration judge (“IJ”) credited the third narrative after Petitioner
withdrew the first two, and granted asylum.  The Bureau of Immigration
Appeals (“BIA”) was “left with the definite and firm conviction that a mistake
[was] committed,” see United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948),
and therefore rejected the IJ’s credibility finding as clearly erroneous and denied
relief.
No one can doubt that, considering (as must be done) the totality of
circumstances, there is room for profound skepticism.  The reason for
persecution is the essence of an asylum claim; it is implausible that anyone forced
from his land by persecution would not know why; yet this Petitioner lied about
it (at least) twice.  The majority remands for the BIA to adduce further reasons for
its definite and firm conviction that Petitioner is lying now.
1
I
I agree with the majority opinion as to the legal standards that govern our
review of the BIA.  The BIA’s review of the IJ’s fact‐finding is for clear error.
When the BIA has concluded that clear error has been committed, our review is
not de novo; rather, we decide whether the BIA has provided sufficient
justification for its conclusion.  Inherent in this distinction is the possibility that
the BIA might believe the IJ committed clear error, while we might believe the IJ
did not, and both conclusions might have “sufficient justification.”
I deviate from the majority opinion because, in my view, the BIA had
ample reason to conclude that clear error was committed, given that the BIA
reviews the totality of circumstances, and that the circumstances include two
prior false narratives.  But I concur rather than dissent because I see no harm in a
remand to the BIA (to explain the obvious), and because specificity of reasons is
good practice.
2
II
The REAL ID Act directs the agency to make a credibility determination in
asylum proceedings based on the “totality of the circumstances” and “all
relevant factors.”  8 U.S.C. § 1158(b)(1)(B)(iii).  Among the factors bearing on
credibility listed in the statute are candor, the inherent plausibility of the
applicant or witness’s account, and consistency of account.  Id.  Thus an adverse
credibility determination may be premised even on inconsistencies that do not
“directly relate to the applicant’s claim of persecution,” so long as the totality of
the circumstances establish that an applicant is not credible.  Xiu Xia Lin v.
Mukasey, 534 F.3d 162, 164‐65 (2d Cir. 2008) (per curiam) (“Under the standard
established by the REAL ID Act, an IJ is required to evaluate inconsistencies in
light of the ‘totality of the circumstances.’”).
“A finding is ‘clearly erroneous’ when although there is evidence to
support it, the reviewing court on the entire evidence is left with the definite and
firm conviction that a mistake has been committed.”  U.S. Gypsum Co., 333 U.S.
at 395.  This formulation of clear error coincides nearly verbatim with the BIA’s
own regulations governing its standard of review.  See Board of Immigration
Appeals: Procedural Reforms To Improve Case Management, 67 Fed. Reg.
3
54,878‐01, at 54,889 (Aug. 26, 2002) (citing Anderson v. City of Bessemer, 470 U.S.
564, 573 (1985)).
The BIA determined that Petitioner’s explanations for his lies “are not
plausible or consistent,” and that the IJ committed clear error in determining that
Petitioner “reasonably and credibly explained his repeated lies to immigration
officials.”  Certified Administrative Record (“CAR”), at pp.4‐5.  The BIA is the
agency charged with administering our nation’s immigration laws, and so it is
their definite and firm conviction that matters, not ours.
Among the totality of circumstances here are Lin’s shifting claims.  On
September 3, 2007, he issued a sworn statement that he feared returning to China
because he released two pregnant women while working for a birth control
facility.  During his credible fear interview with an asylum officer ten days later,
he testified that he feared returning to China because his mistress suffered a
forced abortion, which he opposed.  None of those things ever happened to Lin.
At his hearing before the IJ, he recanted the stories about his heroism in the clinic
and the tragedy of his girlfriend’s forced abortion, and unveiled the entirely new
claim that he suffered persecution in China for practicing Falun Gong, the
account that was credited by the IJ.
4
To support its conclusion that the BIA improperly applied clear error
review, the majority opinion principally relies on Chen v. Bureau of Citizenship
& Immigration Services, 470 F.3d 509 (2d Cir. 2006).  In that case, the BIA ruled
that discrepancies between the asylum applications and the asylum interview
were dispositive as to that petitioner’s credibility.  We remanded because the BIA
had substituted its (adverse) credibility finding for the IJ’s, without “point[ing] to
any misstatements of fact, errors in analysis, flawed reasoning, or improper
applications of law,” and thus performed (impermissible) de novo review.  Id. at
514.  Chen does not control the present case.  In Chen, the discrepancies were in
the details of the asylum claim, such as how Chen managed to escape from
family planning officials after he was arrested.  Id. at 512.  Here, the falsehoods
are not mere discrepancies concerning particulars; the two recanted falsehoods
(like the third account) concern why Petitioner needs asylum at all.  Cf. Ye v.
Depʹt of Homeland Sec., 446 F.3d 289, 295 (2d Cir. 2006) (“Because the BIA has
identified a material inconsistency in an aspect of [Petitioner’s] story that served
as an example of the very persecution from which he sought asylum, we hold
that the inconsistency afforded substantial evidence to support the adverse
credibility finding.” (citations and quotation marks omitted)).
5
III
Lin told the IJ that he advanced the two false (coercive population control)
claims because he was told to do so by the snakeheads, who threatened that
otherwise, if he were returned to China, his smuggling fees would not be
forgiven.
There are sufficient reasons, implicit in the facts, for rejecting this
explanation.  The plausibility of the explanation for outright fabrication is itself
sapped by the lie it is offered to explain.  Moreover, as the BIA pointed out, there
is no indication that Lin would ever be relieved of his obligation to pay the
snakeheads the smuggling fees, regardless of whether his asylum claim was
successful.  Snakeheads do not have the refund policy of American department
stores.
Moreover, the three successive accounts are not incompatible; so the
snakeheads’ requirement that he proffer one false account or another does not
logically preclude his offering the truth, if only as belt and suspenders.  Neither
the IJ nor the majority has posited a plausible explanation for why the Falun
Gong fears were omitted.  See Xiu Xia Lin v. Mukasey, 534 F.3d 162, 166 n.3 (2d
6
Cir. 2008) (“An inconsistency and an omission are, for [credibility] purposes,
functionally equivalent.”).
The majority argues that the proper question is not whether the
snakeheads would actually carry out their threat, but rather whether Lin believed
they would and committed perjury “because of that belief.”  Maj. Op. at ____.
However, any such subjective belief must still be objectively reasonable.  Cf.
Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004) (“[A] well‐founded
fear of future persecution . . . requires that the alien present credible testimony
that he subjectively fears persecution and establish that his fear is objectively
reasonable.”).
It is not objectively reasonable to believe that snakeheads conduct their
business on honorable principles, that they give refunds, that any undertakings
by them can be enforced in any forum, or even that they can be found for
enforcement of contract obligations.
Additionally or alternatively, Lin claims that he failed to advance his Falun
Gong claim because he “had no idea about American laws.”  CAR at p.4.  The
plausible inference is that, if Lin had known that practicing Falun Gong was a
valid basis for an asylum claim, he would have made it in his initial interviews.
7
But Lin was given an open‐ended opportunity to tell the immigration officials
about any fear he had about being sent to China.  He was advised:
U.S. law provides protection to certain persons who face persecution, harm
or torture upon return to their home country.  If you fear or have a concern
about being removed from the United States or about being sent home,
you should tell me so during this interview because you may not have
another chance.
CAR at pp.197, 295.
The BIA and the majority opinion consider whether Lin made any
inconsistent statements about speaking to a lawyer.  But those questions bear
only upon when Lin would have become aware that Falun Gong was his ticket to
stay in the United States.  So it does not matter whether Lin made any
inconsistent statements about speaking to or being represented by a lawyer.
Nothing about his supposed ignorance of our law accounts for why he did not
express a supposedly truthful fear of persecution for practicing Falun Gong,
either on September 3 or September 13, 2007.  He was told to tell the truth, the
interviews were conducted in Mandarin (which Lin said was his best language),
and there is no evidence that Lin failed to understand the questions.  See Yun Zui
Guan v. Gonzales, 432 F.3d 391, 398‐99 (2d Cir. 2005) (noting factors to determine
reliability of asylum and credible fear interviews, including whether alien
8
understood the questions posed and whether those questions elicited details of
an asylum claim).
Ignorance of American asylum law cannot assist Lin unless he was
ignorant of the obligation to tell the truth, notwithstanding that that obligation
was impressed upon him  by immigration officials.  In another context, we have
held that “even an alien who is unfamiliar with the technicalities of immigration
law can, under certain circumstances, be expected to comprehend that he has
received ineffective assistance without being explicitly told so by an attorney.”
Rashid v. Mukasey, 533 F.3d 127, 132 (2d Cir. 2008).  It makes no sense to impose
on aliens stricter requirements to know that their lawyer is being ineffective than
for knowing their own reasons for being afraid to return to their home country.
Cf. Cheek v. United States, 498 U.S. 192, 199 (1991) (“The general rule that
ignorance of the law or a mistake of law is no defense . . . is deeply rooted in the
American legal system.”).
In any event, truth is not a quirk of American procedure.
*   *   *
I understand entirely the reasons why the BIA formed a “definite and firm
conviction” that a mistake has been made.  For that reason, however, the remand
9
will entail no heavy lifting on the part of the BIA, and when it comes to reasoned
dispositions, more cannot hurt.
10