Lin Yan v. United States Department of Justice Attorney General

236 F. App'x 671
CourtCourt of Appeals for the Second Circuit
DecidedJune 12, 2007
DocketNo. 06-4664-ag
StatusPublished
Cited by1 cases

This text of 236 F. App'x 671 (Lin Yan v. United States Department of Justice Attorney General) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lin Yan v. United States Department of Justice Attorney General, 236 F. App'x 671 (2d Cir. 2007).

Opinion

[673]*673SUMMARY ORDER

Lin Yan, a native and citizen of China, seeks review of a September 15, 2006 order of the BIA affirming without opinion Immigration Judge (“IJ”) Gabriel C. Videla’s April 5, 2005 decision denying Lin’s applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Lin Yan, No. A79 408 066 (B.I.A. Sept. 15, 2006), aff'g No. A79 408 066 (Immig. Ct. N.Y. City Apr 5, 2005). We assume the parties’ familiarity with the underlying facts and procedural history of the case.

Where, as here, the BIA issues an opinion that fully adopts the IJ’s decision, we review the IJ’s decision. See, e.g., Chun Gao v. Gonzales, 424 F.3d 122, 124 (2d Cir.2005); Secaida-Rosales v. INS, 331 F.3d 297, 305 (2d Cir.2003). We review factual findings, including adverse credibility determinations, under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see, e.g., Zhou Yun Zhang v. INS, 386 F.3d 66, 73 & n. 7 (2d Cir.2004). However, we will vacate and remand for new findings if the agency’s reasoning or its fact-finding process was sufficiently flawed. See Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 406 (2d Cir.2005). We must “ensure that the IJ’s conclusions were not reached arbitrarily or capriciously ... [and] that credibility findings are based upon neither a misstatement of the facts in the record nor bald speculation or caprice.” Zhou Yun Zhang, 386 F.3d at 74 (internal citations and quotation marks omitted). This Court reviews de novo questions of law and the application of law to undisputed fact. See, e.g., Secaida-Rosales, 331 F.3d at 307.

In the present case, the IJ denied asylum based on an adverse credibility determination. In concluding that Lin lacked credibility, the IJ made the following five findings: (1) Lin’s statements to the airport inspector when he arrived in the United States were inconsistent with his subsequent statements and testimony; (2) it was implausible that petitioner’s brother did not suffer any adverse consequences resulting from their parents’ practice of Falun Gong in China; (3) it was implausible that petitioner’s uncle was able to obtain petitioner’s birth certificate from Chinese authorities; (4) Lin’s testimony regarding his Chinese identification card was not credible; and (5) petitioner’s testimony that he now practices Falun Gong and would be persecuted by the Chinese government for doing so was not credible. The IJ further found that putting aside the adverse credibility determination, asylum should be denied in the exercise of discretion because Lin obtained a “safe haven” in Mexico before arriving in the United States. Because we find that the IJ’s adverse credibility determination was not supported by substantial evidence, and because we find that the IJ erred in concluding that petitioner had obtained a “safe haven” in Mexico, we remand the case to the BIA.

First, the IJ erred in rejecting Lin’s explanation for certain omissions in his airport interview. Lin explained repeatedly that he did not discuss his asylum claim at the airport because his grandmother had advised him that the asylum claim was very important and should not be raised until Lin had the assistance of an attorney. The IJ rejected this explanation, concluding that “it would make absolutely no sense” for Lin to conceal any asylum information during his airport interview, given that Lin’s purpose in coming to the United States was to seek asylum. Because the IJ’s conclusory statements demonstrate that he failed to [674]*674engage in “a reasoned evaluation of [petitioner’s] explanations, the IJ’s conclusion ... was based on flawed reasoning and, therefore, cannot constitute substantial evidence supporting [the IJ’s ultimate] conclusion.” Cao He Lin, 428 F.3d at 403; see also Rui Ying Lin v. Gonzales, 445 F.3d 127, 135 (2d Cir.2006) (noting that an IJ “must give specific, cogent reasons for rejecting [a] petitioner’s testimony”). Moreover, we note that the record supports Lin’s claim that he was willing to discuss his asylum claim only after he met an attorney. As Lin explained during his testimony before the IJ, he met once with an attorney before the credible fear interview. During that second interview, having met with an attorney, Lin presented the basic facts supporting his asylum claim.

Second, petitioner’s explanation of why his brother had not been persecuted was not implausible. When asked about his brother during cross examination, petitioner responded that he was in hiding. The IJ found this explanation unconvincing, reasoning, “it’s not clear where he’s in hiding, when he went into hiding, under what circumstances, and so on.” However, neither the government attorney nor the IJ asked petitioner for these details during the hearing. See Ming Shi Xue v. BIA, 439 F.3d 111, 114-15 (2d Cir.2006) (stating that an IJ may not rely on a discrepancy that is not self-evident “to support a credibility determination without first bringing the perceived discrepancy to the alien’s attention, thereby giving the alien an opportunity to address and perhaps reconcile” the discrepancy to the IJ’s satisfaction). ‘Where an applicant gives very spare testimony ... the IJ or the INS may fairly wonder whether the testimony is fabricated. But instead of reflexively surrendering to nagging doubts about an applicant’s credibility due to the spareness of her testimony, we [have] encouraged the IJ (along with the INS) to probe for incidental details, seeking to draw out inconsistencies that would support a finding of lack of credibility.” Id. at 122-23 (citations and internal quotation marks omitted); see also Jin Shui Qiu v. Ashcroft, 329 F.3d 140, 152 (2d Cir.2003) (vacating and remanding because the agency “erred in denying asylum on the basis of insufficient testimonial specificity”).

Third, the IJ improperly relied on the purportedly fraudulent birth certificate in making the adverse credibility determination. The IJ concluded that “[e]ither the document is authentic and it was issued through the uncle because the authorities really have no reason to look for the [petitioner] or even less to arrest him, or in the alternative, this document is fraudulent.... Either way, the result is the same. The [petitioner]^ credibility is undermined.” In finding that petitioner’s credibility was undermined, the IJ stated, “[t]he [petitioner] claims that this document is authentic and that he believes .this because his uncle obtained it.” The IJ’s finding, however, is clearly erroneous because petitioner did not, in fact, claim that the document was authentic.

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236 F. App'x 671, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lin-yan-v-united-states-department-of-justice-attorney-general-ca2-2007.