Filed: Jan. 26, 2007
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2007 Decisions States Court of Appeals for the Third Circuit 1-26-2007 Lin v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 05-4878 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007 Recommended Citation "Lin v. Atty Gen USA" (2007). 2007 Decisions. Paper 1737. http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1737 This decision is brought to you for free and open access by the Opinions of the
Summary: Opinions of the United 2007 Decisions States Court of Appeals for the Third Circuit 1-26-2007 Lin v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 05-4878 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007 Recommended Citation "Lin v. Atty Gen USA" (2007). 2007 Decisions. Paper 1737. http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1737 This decision is brought to you for free and open access by the Opinions of the ..
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Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
1-26-2007
Lin v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-4878
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007
Recommended Citation
"Lin v. Atty Gen USA" (2007). 2007 Decisions. Paper 1737.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1737
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 2007 Decisions by an authorized administrator of Villanova
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-4878
JIA YAN LIN
Appellant,
v.
ATTORNEY GENERAL OF THE UNITED STATES,,
Appellee.
On Petition for Review of an Order of the Board of Immigration Appeals
(BIA No. A77-997-644)
Submitted Under Third Circuit LAR 34.1(a),
November 28, 2006
Before: FUENTES and GARTH, Circuit Judges, and POLLAK,* District Judge
(Filed January 26, 2007 )
_____
OPINION OF THE COURT
*
The Honorable Louis H. Pollak, Senior Judge, United States District Court for
the Eastern District of Pennsylvania, sitting by designation.
POLLAK, District Judge
Jia Yan Lin petitions for review of a Board of Immigration Appeals (BIA) decision
adopting and affirming an Immigration Judge’s denial of Lin’s applications for asylum
and withholding of removal. We will deny Lin’s petition for review.
I. Background
Because we write primarily for the parties, we summarize only the essential facts.
Lin, a native and citizen of the People’s Republic of China, entered the United States on
February 13, 2002 by means of a passport that did not belong to him. Lin was detained
upon entry and, pursuant to section 1225 of the Immigration and Nationality Act (INA),1
submitted a sworn statement declaring that he left China because he feared that the
government would arrest him for having gotten his girlfriend pregnant. In that same
statement, Lin also declared that, if he were removed from the United States and returned
to China, the government would put him in jail and force his girlfriend to have an
abortion. Lin subsequently submitted a formal application for asylum that included an
affidavit in which he provided further details about the basis for his claims.2
1
Codified at 8 U.S.C. § 1001, et seq.
2
The record does not reveal the exact date on which this application was
submitted. While the form itself is dated March 28, 2001, this is clearly not correct
because, as all parties agree, Lin did not enter the United States until February 2002. Nor
does the date of March 28, 2002 seem correct since Lin’s first removal hearing took place
in California on March 27, 2002 but the application was apparently prepared by a
Philadelphia attorney. However, the application was definitely prepared before March
2
At his merits hearing before the Immigration Judge (IJ), held on April 30, 2004,
Lin testified that he became romantically involved with a woman from his village in
January 2001 but was unable to marry her because they were both below the legal age of
marriage at the time. According to Lin, doctors at the local hospital discovered that his
girlfriend was pregnant in April 2001. Shortly thereafter, family planning officials
came to his parents’ house and threatened to arrest him unless he brought his girlfriend
in for an abortion. To evade these officials, Lin and his girlfriend went into hiding until
July 2001, when Lin decided to leave China. Lin further testified that, after being
released from immigration custody in April 2002, he learned that family planning
officials had forced his girlfriend to have an abortion on September 14, 2001. He
claimed that, if he were removed from the United States and returned to China, he would
be subject to incarceration and fines because he had not taken his girlfriend for an
abortion when originally ordered to do so.
In addition to his testimony, Lin presented the IJ with a notarized copy of his birth
certificate, resident identification cards for Lin and his girlfriend, household registration
documents for Lin’s family, an abortion certificate for Lin’s girlfriend, and copies of
letters from Lin’s father and Lin’s girlfriend. The IJ, considering these submissions,
found that Lin had failed to provide credible evidence in support of his applications for
28, 2003, given that Lin presented it to the IJ at his calendar hearing, held on January 29,
2003.
3
asylum and withholding of removal, and accordingly denied his petitions for relief. The
BIA adopted and affirmed the IJ’s decision. Lin now appeals to this court. We review
the BIA’s decision pursuant to 8 U.S.C. § 1252(a)(1). Because the BIA substantially
relied upon the adverse credibility finding of the IJ, we also review the decision of the IJ.
See also Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir. 2004).
II. Analysis
We review adverse credibility determinations for substantial evidence. Gao v.
Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002). Under this standard, we will uphold the
adverse credibility determinations made by the IJ and BIA unless “any reasonable
adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).
The BIA determined that the IJ’s adverse credibility determination was not clearly
erroneous on the basis of “discrepancies in the record involv[ing] the legal marrying age
in China, when [Lin] met his girlfriend, when [Lin] stopped attending school, and the
date of his girlfriend’s alleged forced abortion.” We conclude that, in view of certain of
these discrepancies,3 a reasonable adjudicator could well find that Lin was not a credible
3
We do not consider the finding that Lin’s testimony about the minimum age of
marriage in China lacked credibility. The Department of State’s country conditions report
stated that the minimum age for marriage in China was 22 for males and 20 for females
but qualified this statement with the observation that “in some localities the ages [of
marriage] are set higher.” Lin testified that the marriage age in his village was 22 for men
and 24 for women. The IJ, explaining the reason for his adverse credibility
determination, stated that “a reasonable interpretation of [the State Department’s report]
4
witness. For instance, at his hearing before the IJ, Lin stated that he and his girlfriend
had been classmates at school since the age of ten, had continued to be in school together
until December 2000, and had begun a romantic relationship in January 2001. However,
in his application for asylum, Lin stated that he had attended school only from 1990 to
1995 and had met his girlfriend in 2001. The IJ also noted that Lin had not provided a
consistent account as to when his girlfriend had been forced to have an abortion and
when he had learned about this incident. Lin stated at the hearing that, although the
abortion occurred on September 14, 2001, he had not mentioned it in his application for
asylum because he did not learn about it until April 1, 2002, when he called home after
being released from immigration custody. Leaving aside the problem of when Lin’s
application was actually submitted, see supra note 2, a reasonable adjudicator could well
find that the documents submitted by Lin undermine rather than corroborate Lin’s
testimony. For example, the letter submitted by Lin’s girlfriend states that the abortion
occurred on September 15, 2002 rather than September 14, 2001.
This court has previously determined that inconsistencies involving the “heart of
the asylum claim” constitute an adequate basis for an adverse credibility finding. Gao,
299 F.3d at 272. Because the above-described inconsistencies are not minor, but rather
although there’s nothing definitive in this record is that perhaps the ages for both men and
women would be set higher with men generally being required to be somewhat older than
women.” As we have previously noted, conjecture and speculation are not an adequate
grounds for an adverse credibility finding.
Gao, 299 F.3d at 272. We therefore exclude
this finding from our analysis.
5
go to the “heart” of Lin’s asylum claim, id., we hold that the BIA and IJ’s adverse
credibility determinations were supported by substantial evidence.4
III. Conclusion
For the reasons stated above, we deny Jia Yan Lin’s petition for review.
4
Even if Lin’s testimony were credible, he would not be eligible for relief because,
under the IJ’s interpretation of the case law, which has been adopted by the BIA, only
spouses of women subjected to family planning policies—not their boyfriends—are
eligible. Lin does not appeal this determination.
6
