Lin v. Holder, No. 12-2302
Decided: November 22, 2013
The Fourth Circuit held that the Immigration Judge and the Board of Immigration Appeals (collectively, the agency) had substantial evidence to support an adverse credibility determination against Qing Hua Lin (Lin) with regard to her applications for asylum, withholding of removal, and deferral of removal under the Convention Against Torture (CAT); that the agency had substantial evidence to support its determination that Lin failed to prove actual past persecution through independent evidence; and that the Immigration Judge did not violate Lin’s due process rights by permitting the Government to submit supplemental evidence after Lin’s initial merits hearing. The Fourth Circuit therefore denied Lin’s petition for review.
Lin, a native citizen of the People’s Republic of China (China), entered the United States illegally on August 19, 2009. The Department of Homeland Security subsequently commenced removal proceedings against Lin, charging her with removability “as an alien who, at the time of application for admission to the United States, was not in possession of valid entry documents.” 8 U.S.C. § 1182(a)(7)(A)(i)(I). In response to these charges, Lin applied for asylum, withholding of removal, and deferral of removal under the CAT. However, Lin made certain conflicting statements at different phases of the asylum process. For instance, in a previous interview with a Border Patrol Agent (the Border Patrol Interview), Lin told the Agent that, inter alia, she was not married; she had one child; she entered the United States “[t]o avoid population control regulations in China”; and she planned to have more children, but she would be forced to have an abortion or a tubal ligation if she became pregnant again. However, at a subsequent credible fear hearing, Lin asserted that, inter alia, she was married to a man who was currently residing in China with their son, and she left China because she was forced to have an unwanted abortion.
Also, in response to Lin’s application for asylum, the Government submitted a State Department report on China’s population control policies; the report “stated that the policies were no longer strictly enforced” and noted the paucity of reports of forced abortions or sterilizations in the relevant province in the preceding twenty-year period. Furthermore, during Lin’s initial merits hearing, the Immigration Judge asked Lin why she requested an abortion certificate after the forced abortion, and Lin changed her answer several times. Lin also had a second merits hearing after the Government requested that the court consider certain additional evidence—specifically, evidence from the Border Patrol interview that the Government’s attorneys discovered after the close of evidence. At the second merits hearing, Lin said she told the Border Patrol Agent she was not married due to a cultural misunderstanding; she also explained her failure to mention the forced abortion to the Agent in vague and nonresponsive answers, stating that, inter alia, the Agent told her not to provide details of her claim and she thought there was not room for detailed answers on the Agent’s form.
The Immigration Judge found that Lin was not credible “in light of the inconsistencies, implausibilities, and contradictions” in her testimony, application, and statements during the Border Patrol interview. The Judge also rejected Lin’s explanations for the inconsistencies and took issue with her failure to mention the forced abortion during the Border Patrol interview. Furthermore, the Judge found that the adverse credibility determination could not be overcome, as Lin had not provided sufficient evidence to independently prove past persecution in the form of a forced abortion. The Immigration Judge therefore denied Lin’s applications, ordering her removed to China. The Board of Immigration Appeals affirmed and adopted the Immigration Judge’s decision, and Lin appealed.
While the Fourth Circuit acknowledged concern with the agency’s unqualified reliance on statements made during “airport interviews”—such as Lin’s Border Patrol interview—the court also could not “countenance” Lin’s failure to mention the forced abortion during the Border Patrol interview, as this was “the very core of her claim.” The Fourth Circuit also found that Lin’s testimony regarding her marital status involved “a direct contradiction for which she was later unable to provide a believable explanation” and noted her “demeanor and non-responsiveness during questioning on certain topics.” With regard to the prospect of actual past persecution proven by independent evidence, the Fourth Circuit found that, inter alia, Lin’s abortion certificate was suspect due to Lin’s unreliable testimony, and that evidence from the State Department report countered certain evidence of the enforcement of family planning regulations. Lastly, with regard to any due process issues stemming from the Immigration Judge’s decision to allow the Government to submit supplemental evidence after the initial merits hearing, the Fourth Circuit noted the discretionary authority of Immigration Judges “to set and extend deadlines for the submission of evidence,” as well as Lin’s opportunity to explain her previous statements at the second merits hearings—which both parties had several months to prepare for.
– Stephen Sutherland