Filed: Oct. 17, 2005
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2005 Decisions States Court of Appeals for the Third Circuit 10-17-2005 Lin v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 04-2041 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005 Recommended Citation "Lin v. Atty Gen USA" (2005). 2005 Decisions. Paper 404. http://digitalcommons.law.villanova.edu/thirdcircuit_2005/404 This decision is brought to you for free and open access by the Opinions of the
Summary: Opinions of the United 2005 Decisions States Court of Appeals for the Third Circuit 10-17-2005 Lin v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 04-2041 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005 Recommended Citation "Lin v. Atty Gen USA" (2005). 2005 Decisions. Paper 404. http://digitalcommons.law.villanova.edu/thirdcircuit_2005/404 This decision is brought to you for free and open access by the Opinions of the U..
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Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
10-17-2005
Lin v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-2041
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005
Recommended Citation
"Lin v. Atty Gen USA" (2005). 2005 Decisions. Paper 404.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/404
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2005 Decisions by an authorized administrator of Villanova
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 04-2041
____________
KAI LIN,
Petitioner
v.
UNITED STATES DEPARTMENT OF JUSTICE,
ALBERTO R. GONZALES,*
Attorney General of the United States
____________
On Petition for Review from an
Order of the Board of Immigration Appeals
(Board No. A77-341-294)
____________
Submitted Under Third Circuit LAR 34.1(a)
September 22, 2005
Before: ROTH, McKEE and FISHER, Circuit Judges.
(Filed: October 17, 2005)
____________
OPINION OF THE COURT
____________
*
Attorney General Alberto R. Gonzales has been substituted for former Attorney
General John Ashcroft, the original respondent in this case, pursuant to Fed. R. App.
P. 43(c).
FISHER, Circuit Judge.
Petitioner Kai Lin, a citizen of China, petitions for review of a decision of the
Board of Immigration Appeals (“Board”) entered March 31, 2004, affirming denial of his
applications for asylum, withholding of removal, and protection under the United Nations
Convention Against Torture (“CAT”). We will deny the petition.
I.
Petitioner arrived in the United States on November 12, 2000, without valid
immigration documents and was immediately deemed subject to removal. The
Immigration and Naturalization Service 1 subsequently instituted removal proceedings
against him under 8 U.S.C. §§ 1182(a)(6)(C)(i) (alien seeks to procure entry by fraud or
wilful misrepresentation of material fact) and 1182 (a)(7)(A)(i)(1) (alien not in possession
of valid entry documents). Petitioner then filed applications for asylum, withholding of
removal, and protection under the CAT, citing his wife’s second pregnancy and forced
abortion and their attempts to avoid that event, and his fear that, if he returned to China,
he would be persecuted for his actions in opposition to the country’s family planning
policy.
1
On March 1, 2003, the INS ceased to exist as an independent agency within the
Department of Justice and its functions were transferred to the newly formed Department
of Homeland Security. See Homeland Security Act, Pub. L. No. 107-296, § 441, 116
Stat. 2135, 2192 (2002). The former INS was divided into three separate agencies:
United States Immigration and Customs Enforcement; Bureau of Customs and Border
Protection; and the United States Citizenship and Immigration Services. Joseph v.
Attorney General, 421 F.3d 224, 225 n.2 (3d Cir. 2005).
2
Petitioner appeared before an Immigration Judge (“IJ”) on October 26, 2001.
After eliciting minimal testimony from petitioner, his counsel requested a continuance,
citing concerns with petitioner’s mental and physical capacities and noting that “what [he
has] told us today just simply doesn’t make sense.” The IJ stated on the record that he too
had observed petitioner stuttering, making “violent head jerks,” and constantly
contradicting himself. (App. at 118 (“[T]he testimony is so contradictory[;] [he] can’t
remember two minutes after he tells me one thing[] what he’s told me because he
immediately contradicts it. [I] was tempted to just cut this hearing short and . . . [order
removal] for lack of credibility, but there may be some organic problem here.”).)
Speculating that perhaps petitioner required medical attention, the IJ granted the
continuance. When petitioner subsequently appeared before him on November 4, 2002,
the IJ reviewed the reason for the continuance and asked whether petitioner had sought
medical attention. Counsel represented that, despite their urging, he had not visited a
doctor or a speech therapist; petitioner stated: “I didn’t need to see a doctor.” Before
resuming testimony, the IJ warned that, to the extent petitioner continued to contradict
himself, such would be viewed as having “nothing to do with any psychological or
medical problem.” After the hearing, the IJ denied petitioner’s applications for asylum,
withholding of removal and protection under the CAT, citing specific contradictions in
his testimony and deeming him “totally incredibl[e].” (App. at 85 (“It is obvious to the
Court that [petitioner] is making up his testimony as he is going along . . . .”).) Petitioner
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appealed and on March 31, 2004, the Board affirmed the IJ’s decision without opinion.
This petition for review followed on April 23, 2004.
On May 10, 2004, petitioner filed a motion to reopen the Board’s decision;
attached thereto was a psychologist’s report, attempting to explain why petitioner had
contradicted himself and/or otherwise behaved oddly during the hearing. By opinion
dated September 9, 2004, the Board denied the motion to reopen, noting that the
psychologist’s report did not refer to any specific testimony and did not otherwise
establish petitioner as credible. Additionally, the Board noted that petitioner had been
given ample opportunity to submit this type of evidence to the IJ but failed to do so.
petitioner did not appeal this order.
II.
We have jurisdiction to review a final order of removal pursuant to 8 U.S.C.
§ 1252(a)(1). Because the BIA affirmed the IJ’s decision without opinion, we review the
decision of IJ. Zhang v. Gonzales, 405 F.3d 150, 155 (3d Cir. 2005) (citing Abdulai v.
Ashcroft,
239 F.3d 542, 549 n.2 (3d Cir.2001)).
An alien has the burden of supporting his claim for relief from removal. His
credibility, by itself, may satisfy the burden, or doom the claim. Dia v. Ashcroft, 353 F.3d
228, 247 (3d Cir. 2003) (en banc). Testimony, by itself, is sufficient to meet the burden if
“credible.”
Id. (quoting 8 C.F.R. § 208.13(a)). An adverse credibility determination is a
finding of fact,
id., which we review under the standard found in 8 U.S.C.
4
§ 1252(b)(4)(B) (“[A]dministrative findings of fact are conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary”). This standard has been
interpreted to require the finding be supported by substantial evidence. Dia, 353 F.3d at
247-48 (citing INS v. Elias-Zacarias,
502 U.S. 478, 481 (1992)). “Substantial evidence is
more than a scintilla, and must do more than create a suspicion of the existence of the fact
to be established. It means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.”
Id. at 248 (internal citation, quotation omitted). We
require that an adverse credibility determination be supported by specific and cogent
reasons for disbelief, see
id. at 249, but recognize that an “immigration judge alone is in a
position to observe an alien's tone and demeanor, to explore inconsistencies in testimony,
and to apply workable and consistent standards in the evaluation of testimonial evidence.
He is, by virtue of his acquired skill, uniquely qualified to decide whether an alien's
testimony has about it the ring of truth,” Abdulrahman v. Ashcroft,
330 F.3d 587, 597 (3d
Cir. 2003) (quoting Sarvia-Quintanilla v. INS,
767 F.2d 1387, 1395 (9th Cir. 1985)).
Pursuant to 8 U.S.C. § 1158(b)(1)(B)(iii), as amended by the REAL ID Act of
2005, Pub. L. No. 109-13, 119 Stat. 231, inconsistencies, inaccuracies, or falsehoods
identified by an IJ giving rise to an adverse credibility determination may now be made
“without regard” to whether they “go[] to the heart of the applicant's claim.” Cf. Gao v.
Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002). Rather, amended § 1158(b)(1)(B)(iii) states:
(iii) Credibility Determination-Considering the totality of the circumstances,
and all relevant factors, a trier of fact may base a credibility determination
5
on the demeanor, candor, or responsiveness of the applicant or witness, the
inherent plausibility of the applicant's or witness's account, the consistency
between the applicant's or witness's written and oral statements (whenever
made and whether or not under oath, and considering the circumstances
under which the statements were made), the internal consistency of each
such statement, the consistency of such statements with other evidence of
record (including the reports of the Department of State on country
conditions), and any inaccuracies or falsehoods in such statements, without
regard to whether an inconsistency, inaccuracy, or falsehood goes to the
heart of the applicant's claim, or any other relevant factor. There is no
presumption of credibility, however, if no adverse credibility determination
is explicitly made, the applicant or witness shall have a rebuttable
presumption of credibility on appeal.
8 U.S.C. § 1158(b)(1)(B)(iii).
IV.
Petitioner argues the adverse credibility determination is not supported by
substantial evidence. Specifically, he asserts that many of the inconsistencies cited by the
IJ as the basis for his decision arise not from his testimony but from the IJ’s
misunderstanding of it. Additionally, he asserts that the adverse credibility determination
was based on immaterial inconsistencies that do not detract from the cogency of
petitioner’s basic claim. We have reviewed petitioner’s arguments against the record and
conclude that there are sufficient material inconsistencies to uphold the adverse
credibility determination, and specifically to satisfy amended § 1158(b)(1)(B)(iii).
Specifically, as the IJ noted, the contradictions were rife among petitioner’s application
for asylum, his supporting affidavit, and his testimony on basic facts central to his claim
for relief, including the date of the IUD insertion, the date of his pregnant wife’s physical
6
examination by local officials, the date of the abortion, and the events surrounding their
attempt to hide from local officials. This record simply would not compel a reasonable
adjudicator to reach a conclusion opposite to that reached by the IJ.
Acknowledging, as he must, that there are many unexplained inconsistencies in the
record, petitioner next argues that, where an IJ observes behavior causing him to question
a petitioner’s competency, it is reversible error to base an adverse credibility finding on
such behavior. We cannot agree on this record. Here, the IJ granted a lengthy
continuance and warned that petitioner’s behavior would have be viewed as adversely
impacting his credibility without medical documentation to support that his behavior
stemmed from something other than untruthfulness. When the hearing resumed, the IJ
specifically inquired whether medical documentation was available, but none was
forthcoming. The psychologist’s report attached to the motion to reopen was not before
the IJ when he made the decision now under review. We lack jurisdiction to review the
Board’s denial of the motion to reopen in the absence of a separate appeal therefrom, see
Nocon v. INS, 789 F.2d 1028, 1033 (3d Cir. 1986) (stating that final deportation orders
and orders denying motions to reopen or reconsider are “independently reviewable final
orders”), and thus cannot rely on the psychologist’s report as undermining the adverse
credibility finding, see 8 U.S.C. § 1252(b)(4)(a) (“[A] court of appeals shall decide the
petition only on the administrative record on which the order of removal is based”).
Accordingly, the petition for review will be denied.
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