Lin v. Gonzales, (2nd Cir. 2007)

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06-4411-ag

Lin v. Gonzales

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

R U L I N G S BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS

F I L E D AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT'S LOCAL RULE 32.1

A N D FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A

L I T I G A N T CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST

O N E CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:

" ( S U M M A R Y ORDER)." A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER

T O G E T H E R WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED

B Y COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS

P U B L I C L Y ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT

H T T P : / / W W W . C A 2 . U S C O U R T S . G O V /

O R D E R ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE D O C K E T NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED. A t a stated term of the United States Court of Appeals f o r the Second Circuit, held at the Daniel Patrick Moynihan U n i t e d States Courthouse, 500 Pearl Street, in the City of N e w York, on the 6th day of September, two thousand seven. PRESENT: H O N . CHESTER J. STRAUB, H O N . BARRINGTON D. PARKER, H O N . REENA RAGGI, C i r c u i t Judges. X I - F A N G LIN, Petitioner, v. 06-4411-ag NAC U . S . DEPARTMENT OF JUSTICE, A T T O R N E Y GENERAL ALBERTO R. GONZALES, Respondent. F O R PETITIONER: Y e e Ling Poon, Robert Duk-Hwan Kim, L a w Offices of Yee Ling Poon, New Y o r k , New York. F O R RESPONDENTS: K a t h r y n L. Deangelis, Trial A t t o r n e y , Office of Immigration L i t i g a t i o n , U.S. Department of J u s t i c e , Washington, D.C.

U P O N DUE CONSIDERATION of this petition for review of a d e c i s i o n of the Board of Immigration Appeals ("BIA"), it is h e r e b y ORDERED, ADJUDGED, AND DECREED that the petition for r e v i e w is GRANTED in part and DENIED in part.

P e t i t i o n e r Xi-Fang Lin, a citizen of the People's R e p u b l i c of China, seeks review of an August 31, 2006 order o f the BIA affirming the March 11, 2005 decision of I m m i g r a t i o n Judge ("IJ") Noel Anne Ferris, denying her a p p l i c a t i o n for asylum, withholding of removal and relief u n d e r Article 3 of the Convention Against Torture ("CAT").

I n re Xi-Fang Lin, No. A78 471 861 (B.I.A. Aug. 31, 2006), a f f ' g No. A78 471 861 (Immig. Ct. N.Y. City Mar. 11, 2005).

W e assume the parties' familiarity with the underlying facts a n d procedural history of the case.

W h e r e , as here, the BIA adopts and affirms the IJ's d e c i s i o n but rejects some of the IJ's reasoning, this Court r e v i e w s the IJ's decision as modified by the BIA, i.e., " m i n u s the . . . argument[s] for denying relief that [were] r e j e c t e d by the BIA." Xue Hong Yang v. U.S. Dep't of J u s t i c e , 426 F.3d 520, 522 (2d Cir. 2005).

W e review the agency's factual findings, including a d v e r s e credibility determinations, under the substantial e v i d e n c e standard, treating them as "conclusive unless any r e a s o n a b l e adjudicator would be compelled to conclude to the contrary." 8U.S.C. § 1252(b)(4)(B); see Zhou Yun Zhang v. I N S , 386 F.3d 66, 73 & n.7 (2d Cir. 2004) (overruled on o t h e r grounds). We generally will not disturb adverse c r e d i b i l i t y determinations that are based on "specific e x a m p l e s in the record of inconsistent statements . . . a b o u t matters material to [an applicant's] claim of p e r s e c u t i o n , or on contradictory evidence or inherently i m p r o b a b l e testimony regarding such matters." Zhou Yun Z h a n g , 386 F.3d at 74 (internal quotation marks omitted).

H o w e v e r , we will vacate and remand for new findings if the a g e n c y ' s reasoning or its fact-finding process was s u f f i c i e n t l y flawed. Cao He Lin v. U.S. Dep't of Justice, 4 2 8 F.3d 391, 406 (2d Cir. 2005); Tian-Yong Chen v. INS, 359 F . 3 d 121, 129 (2d Cir. 2004).

D e s p i t e Lin's arguments to the contrary, we assume that t h e agency found the record of her airport and credible fear i n t e r v i e w s to be reliable, as both the IJ and the BIA u t i l i z e d the documents in assessing Lin's credibility. Upon c l o s e examination, we agree that the documents were reliable. See Ramsameachire v. Ashcroft, 357 F.3d 169, 179 ( 2 d Cir. 2004). The records of both Lin's airport and c r e d i b l e fear interviews were written in transcript form, a n d appear to be a verbatim account of the statements she made. The questions asked were designed to elicit her claim a n d there is no indication of any reluctance on Lin's part t o answer the questions posed. Furthermore, Lin confirmed t h a t she could understand the questions the immigration o f f i c e r s asked her in both interviews. In addition, there i s no indication in the responses Lin gave that might i n d i c a t e that she misunderstood the questions she was asked.

M o r e o v e r , the IJ properly rejectioned Lin's assertions that s h e could not understand Mandarin, where she specifically s t a t e d during her credible fear interview that Mandarin was t h e language she spoke. Accordingly, the agency reasonably r e l i e d on the statements Lin made in both her credible fear a n d airport interviews in reaching an adverse credibility determination. Ramsameachire, 357 F.3d at 179.

H e r e , as both the IJ and BIA noted, Lin's statements r e g a r d i n g the number of times she was arrested were inconsistent. Lin stated at her airport interview that she w a s "not arrested." At her credible fear interview, h o w e v e r , she stated that she was "arrested 3 times." And at h e r asylum hearing, Lin testified that she was arrested " o n l y once." These inconsistencies go to the heart of Lin's c l a i m s and thus provide substantial evidence to support the I J ' s adverse credibility determination. Moreover, where an i n c o n s i s t e n c y is dramatic, the agency may rely on it without f i r s t soliciting an explanation from the applicant. See M a j i d i v. Gonzales, 430 F.3d 77, 81 (2d Cir. 2005).

N e v e r t h e l e s s , the IJ did give Lin such an opportunity, and r e a s o n a b l y rejected her explanations. Accordingly, to the e x t e n t it was affirmed by the BIA, the adverse credibility d e t e r m i n a t i o n was proper.

W e further find that substantial evidence supports the I J ' s conclusion that Lin's alleged fear of forced s t e r i l i z a t i o n was speculative, where she has only one child a n d was therefore not in violation of the family planning policy. See Jian Xing Huang v. INS, 421 F.3d 125, 128-29 ( 2 d Cir. 2005) (per curiam). 1 I n addition, we decline to reach Lin's claim that she w i l l suffer persecution because she will be forced to have a n IUD inserted. Where an issue is not properly presented t o an IJ, it is not "ripe for review" in this Court unless t h e BIA "apparently excus[ed] [the] failure to raise the i s s u e previously." Douglas v. INS, 28 F.3d 241, 245 (2d C i r . 1994) (quoting Waldron v. INS, 17 F.3d 511, 515 n. 7 ( 2 d Cir. 1994)). Here, Lin failed to assert before the IJ t h a t she would be subjected to a forced IUD insertion if she w e r e removed to China. Although Lin raised the argument to t h e BIA, it gave no indication that it had excused her f a i l u r e to raise the issue previously. Accordingly, the i s s u e is not properly before this Court.

F u r t h e r m o r e , substantial evidence supports the IJ's f i n d i n g that Lin had failed to establish that it was more l i k e l y than not that she would suffer torture in China b e c a u s e she emigrated from the country illegally. As the IJ n o t e d , Lin was never "punished in any excessive manner," and h e r claim was "not supported by the background evidence." T h e State Department's 2004 Profile of Asylum Claims i n d i c a t e s , inter alia, that "U.S. officials in China have Gonzales, --- F.3d ---, No. 04-0042-ag, 2007 WL 2012395 (2d.

C i r . July 12, 2007). n o t confirmed any cases of abuse of persons returned to C h i n a from the United States for illegal entry." Thus, a b s e n t evidence of torture for someone in Lin's "particular a l l e g e d circumstances," we agree that she failed to e s t a b l i s h that it is more likely than not that she would s u f f e r torture in China. See Mu-Xing Wang v. Ashcroft, 320 F . 3 d 130, 143-44 (2d Cir. 2003).

N e v e r t h e l e s s , Lin need not show that she will be s i n g l e d - o u t for mistreatment if she has established that she i s Catholic, and that there is a pattern and practice of p e r s e c u t i o n against Catholics in China. See 8 C.F.R. § 1208.13(b)(2)(iii)(A),(B). As Lin argues, the BIA's a f f i r m a n c e of the IJ's adverse credibility determination d o e s not appear to have extended to her assertion that she i s Catholic. See Diallo v. INS, 232 F.3d 279, 287 (2d Cir. 2 0 0 0 ) (holding that the agency must make specific c r e d i b i l i t y findings). We have held that "an applicant may p r e v a i l on a theory of future persecution despite an IJ's a d v e r s e credibility ruling as to past persecution, so long a s the factual predicate of the applicant's claim of future p e r s e c u t i o n is independent of the testimony that the IJ f o u n d not to be credible." Paul v. Gonzales, 444 F.3d 148, 1 5 4 (2d Cir. 2006). The BIA never addressed whether Lin e s t a b l i s h e d that she is Catholic or that there is a pattern a n d practice of persecution against Catholics in China ­ and t h e s e issues are independent of the testimony that the BIA f o u n d not to be credible. Accordingly, we remand for the a g e n c y to address these issues in the first instance. See J i a n Hui Shao v. BIA, 465 F.3d 497, 501 (2d Cir. 2006). On r e m a n d , the BIA should determine (1) whether Lin established t h a t she is Catholic; and (2) whether Lin presented s u f f i c i e n t background evidence to establish a pattern or p r a c t i c e of persecution against Catholics in China.

F o r the foregoing reasons, the petition for review is G R A N T E D in part and DENIED in part, the BIA's August 31, 2 0 0 6 order is VACATED in part, and the case is REMANDED to t h e BIA for proceedings consistent with this opinion.

P e t i t i o n e r ' s pending request for oral argument in this case i s DENIED in accordance with Federal Rule of Appellate P r o c e d u r e 34(a)(2), Second Circuit Local Rule 34(d)(1).

F O R THE COURT: C a t h e r i n e O'Hagan Wolfe, Clerk By:

1 W e also note that Lin's reliance on our holding in S h o u Yung Guo v. Gonzales is misplaced. In Guo, we remanded a petitioner's family planning claim to the BIA because it h a d ignored certain documents in the record that might e s t a b l i s h the existence of an official policy of forced s t e r i l i z a t i o n in Fujian Province. See Shou Yung Guo v. G o n z a l e s , 463 F.3d 109, 115 (2d Cir. 2006). However, more r e c e n t l y , we have noted that we will not remand to the BIA f o r the consideration of new evidence where, as here, such e v i d e n c e is not in the record. See Xiao Xing Ni v.

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