Lin v. Sessions

• Court: Court of Appeals for the Second Circuit
• Decided: January 25, 2018
• Docket: 16-1268
• Status: Unpublished

Opinion

16-1268 Lin v. Sessions UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 25th day of January, two thousand eighteen. PRESENT: ROBERT A. KATZMANN, Chief Judge, AMALYA L. KEARSE, ROSEMARY S. POOLER, Circuit Judges. _____________________________________ LIN MING FENG, Petitioner, v. 16-1268

JEFFERSON B. SESSIONS III, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: ADEDAYO O. IDOWU, New York, NY. FOR RESPONDENT: NEHAL H. KAMANI, Trial Attorney, Office of Immigration Litigation (Benjamin C. Mizer, Principal Deputy Assistant Attorney General; Holly M. Smith, Senior Litigation Counsel, on the brief), Civil Division, United States Department of Justice, Washington, DC. UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the petition for review of the Board of Immigration Appeals (“BIA”) decision is DENIED.

Petitioner Lin Ming Feng (“Lin”), a native and citizen of the People’s Republic of China,

seeks review of an April 5, 2016 decision of the BIA affirming an October 8, 2014 decision of an

Immigration Judge (“IJ”) denying Lin’s application for asylum, withholding of removal, and relief

under the Convention Against Torture (“CAT”). In re Lin Ming Feng, No. A205 250 674 (B.I.A.

Apr. 5, 2016), aff’g No. A205 250 674 (Immig. Ct. N.Y. City Oct. 8, 2014). We assume the

parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on

appeal.

Because the BIA adopted the IJ’s reasoning and offered additional commentary, “we

review the decision of the IJ as supplemented by the BIA.” Wala v. Mukasey, 511 F.3d 102, 105

(2d Cir. 2007). We review the BIA’s “legal conclusions de novo, and its factual findings, including

adverse credibility determinations, under the substantial evidence standard.” Shi Jie Ge v.

Holder, 588 F.3d 90, 93–94 (2d Cir. 2009) (citation omitted). Under the substantial evidence

standard, the BIA’s factual findings are treated as “conclusive unless any reasonable adjudicator

would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). However, while the

substantial evidence standard “is highly deferential, it does not admit misstatement of the facts in

the record or bald speculation or caprice.” Huo Qiang Chen v. Holder, 773 F.3d 396, 403 (2d Cir.

2014) (internal quotation marks and alteration omitted).

We turn first to Lin’s asylum claim, which requires a showing that he is a “refugee”—that

is, a person outside the country of his or her nationality who is “unable or unwilling to” return to

that country “because of persecution, or a well-founded fear of future persecution on account of

race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C.

2 § 1101(a)(42). Here, Lin claims that he was arrested and beaten by Chinese authorities for

practicing Christianity and fled to the United States because he feared ongoing persecution in

China and wanted to be able to practice his Christian faith. The IJ concluded, and the BIA agreed,

that Lin failed to carry his burden of proof because he was not credible and failed to adduce

supporting evidence.

The BIA, drawing on the IJ’s analysis, based its adverse credibility findings on three

inconsistencies across Lin’s credible fear interview, asylum application, and hearing testimony

regarding (1) the circumstances of his arrest, (2) the nature of his treatment at the hands of Chinese

authorities, and (3) his religious practices in the United States. Although we affirm the adverse

credibility finding, the IJ and the BIA’s analysis was not without error.

First, in identifying inconsistencies both the IJ and the BIA improperly relied on the notes

from Lin’s credible fear interview, emphasizing that they made no mention of details—such as the

number of Christian churchgoers who were arrested alongside Lin—that were subsequently

included in the asylum application and hearing testimony. This Court has observed that “credible

fear interviews are not designed to elicit all the details of an alien’s claim, but rather only to

determine whether there is ‘a significant possibility . . . that the alien could establish eligibility for

asylum.’” Zhang v. Holder, 585 F.3d 715, 724 (2d Cir. 2009) (quoting 8 U.S.C. §

1225(b)(1)(B)(v)). Given the limited purpose of these interviews and their often rushed and tense

conditions, the weight IJs and the BIA should ascribe to them depends on how reliable they seem.

In Ramsameachire v. Ashcroft, 357 F.3d 169, 180 (2d Cir. 2004), we articulated four

non-exhaustive factors to consider in making this reliability determination: (1) whether the record

of the interview is a transcript or merely a summary; (2) whether the questions were designed to

“elicit the details of an asylum claim;” (3) whether the alien appears to have been “reluctant to

3 reveal information to [immigration] officials because of prior interrogation sessions or other

coercive experiences in his or her home country;” and (4) whether the alien’s statements suggest

that he or she did “not understand English or the translations provided by the interpreter.” 357 F.3d

at 180; Zhang, 585 F.3d at 724.

The first three factors call into question the reliability of the recorded statements. First,

there is no transcript of the interview but merely shorthand notes that the IJ characterized as

“somewhat sketchy.” R. at 66. This raises questions about whether Lin’s statements were fully and

accurately memorialized. Second, although the officer asked follow-up questions, none of these

questions sought to elicit the details the IJ and the BIA later emphasized, such as how many

churchgoers were arrested. Third, assuming the truth of Lin’s representation that he was beaten

during an interview with Chinese authorities, it is plausible, if not likely, that he was nervous and

reserved during his credible fear interview. In light of these limitations, the IJ and BIA gave undue

weight to the credible fear interview by relying on the omission of minor factual details.

Second, the IJ and BIA held Lin to an unreasonably stringent standard in finding that his

accounts of his treatment at the hands of Chinese authorities were inconsistent. Drawing on the IJ’s

reasoning, the BIA compared Lin’s credible fear interview, where he claimed that he was slapped

a few times and his face swelled; his application, where he claimed that he was slapped a few times

and his mouth bled and his face swelled; and his testimony, where he claimed that he was slapped

four times, handcuffed, and beaten. But these statements are not inconsistent. Although the asylum

application mentions bleeding, a detail not included in the credible fear interview notes, this

additional fact does not rise to the level of an inconsistency, particularly given the limitations of

the credible fear interview. Similarly, when viewed in context, Lin’s testimony was consistent

with his application. Lin’s application said that when the police interrogated him they “slapped

4 [him] harshly until [his] mouth was bleeding” and his face became “swollen.” R. at 176. At the

hearing, the interrogation was discussed in greater detail. Lin’s attorney asked how the police

responded when Lin told them he attended the church gathering to worship, not for political

activity. Lin replied, “They did not believe me and they beat me.” R. at 100. When asked how long

the beating lasted, Lin replied, “They slapped me four times on my face.” R. at 100-01. Counsel

then asked, “Apart from slapping you, did they do anything else?” and Lin replied, “They

handcuffed me and they beat me.” R. at 101. The IJ and BIA chose to understand this as testimony

that Lin was first slapped, then handcuffed, and then the beating continued. But, even if we accept

this interpretation, the added fact that Lin’s beating continued after he was handcuffed cannot be

characterized as an inconsistency. If anything, the IJ has identified a descriptive detail that was

omitted from Lin’s asylum application, but the “the impact of omissions must be measured against

the whole record before they may justify an adverse credibility determination.” Secaida-Rosales v.

I.N.S., 331 F.3d 297, 308 (2d Cir. 2003), superseded by statute on other grounds as recognized in

Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (per curiam). In isolation, this omission

indicates nothing more than that narratives vary subtly across retellings.

Notwithstanding these errors, there were other bases for the IJ and BIA’s adverse

credibility finding. For example, Lin’s accounts of his arrest varied. He testified that he was

worshipping with eight people, but only he and two others were arrested. By contrast, his

application stated that everyone was arrested. When pressed about this inconsistency, Lin

confirmed that only three people were arrested but was unable to explain his earlier statement,

offering only that he “[did]n’t remember clearly.” R. at 136. The Board declined to credit this

explanation. Although such skepticism is by no means necessary, on appeal Lin “must do more

than offer a plausible explanation for his inconsistent statements to secure relief; he must

5 demonstrate that a reasonable fact-finder would be compelled to credit his testimony.” Majidi v.

Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (internal quotation marks and citations omitted). He has

failed to make this showing.

Unable to carry his burden based on his own testimony, Lin also failed to present

corroborating evidence. The Board emphasized that the record did not contain reasonably

available forms of corroboration, such as a letter from Lin’s parents—which might have

corroborated his claim that Chinese police came to check up on him following his arrest—or the

pastor—which might have corroborated the details of the police raid or Lin’s religious

practices—or any documentary evidence supporting Lin’s claim that he attended church in the

United States. We have recognized that an IJ may require that an applicant’s testimony be

corroborated when one would reasonably suspect such evidence to be available at the time of the

immigration hearings, and Lin has failed to demonstrate that the evidence requested was not

reasonably available to him. Liu v. Holder, 575 F.3d 193, 197–98 (2d Cir. 2009). The adverse

credibility finding in conjunction with the absence of corroborating evidence is dispositive of

Lin’s asylum claim.

Lin’s arguments regarding withholding of removal and CAT protection have both been

forfeited, the former because it was not properly developed, Tolbert v. Queens Coll., 242 F.3d 58,

75 (2d Cir. 2001), and the latter because it was not raised before the BIA, Zhong v. U.S. Dep’t of

Justice, 480 F.3d 104, 121–22 (2d Cir. 2007).

For the foregoing reasons, the petition for review is DENIED. As we have completed our

review, the stay of removal that the Court previously granted in this petition is VACATED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk