Lin v. United States Department of Justice

153 F. App'x 65
CourtCourt of Appeals for the Third Circuit
DecidedOctober 17, 2005
Docket04-2041
StatusUnpublished

This text of 153 F. App'x 65 (Lin v. United States Department of Justice) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lin v. United States Department of Justice, 153 F. App'x 65 (3d Cir. 2005).

Opinion

OPINION OF THE COURT

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.

*67 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)(l) (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.

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 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 *68 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. § 1252(b)(4)(B) (“[Administrative 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, 112 S.Ct. 812, 117 L.Ed.2d 38 (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)(l)(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,

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153 F. App'x 65, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lin-v-united-states-department-of-justice-ca3-2005.