Xin Song Lin v. Gonzales

167 F. App'x 263
CourtCourt of Appeals for the Second Circuit
DecidedFebruary 15, 2006
DocketNo. 05-0008-AG
StatusPublished

This text of 167 F. App'x 263 (Xin Song Lin v. Gonzales) 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
Xin Song Lin v. Gonzales, 167 F. App'x 263 (2d Cir. 2006).

Opinion

SUMMARY ORDER

Xin Song Lin petitions for review of the December 2004 order of the BIA affirming the decision of the immigration judge (“IJ”) to deny his application for asylum, withholding of removal and relief under the Convention against Torture (“CAT”). Familiarity with the facts and the procedural history of the case is presumed.

Chen contends that the BIA incorrectly affirmed the IJ’s denial of his claims for asylum, withholding of removal and relief under CAT because the adverse credibility determination was not supported by substantial evidence. This Court has accepted the proposition “that an imputed political opinion, whether correctly or incorrectly attributed, can constitute a ground of political persecution within the meaning of the [Immigration and Nationality] Act.” Gao v. Gonzales, 424 F.3d 122, 129 (2d Cir.2005) (quoting Alvarez-Flores v. INS, 909 F.2d 1, 4 (1st Cir.1990)). This Court reviews the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard. See 8 U.S.C. § 1252(b)(4)(B); Jin Hui Gao v. United States Att’y Gen., 400 F.3d 963, 964 (2d Cir.2005); Zhou Yun Zhang v. INS, 386 F.3d 66, 73-79; Ramsameachire v. Ashcroft, 357 F.3d 169, 178-83 (2d Cir.2004); Secaida-Rosales v. INS, 331 F.3d 297, 306-13 (2d Cir.2003); Diallo v. INS, 232 F.3d 279, 286-88 (2d Cir.2000).

The IJ’s adverse credibility finding, as adopted by the BIA, was supported by substantial evidence. First, the IJ properly considered Lin’s failure to produce documentation corroborating his claim. Lack of corroborating documentation is a proper basis to support an adverse credibility finding only in those cases where, but for lack of corroboration, the petitioner would be “otherwise credible.” See Zhou Yun Zhang, 386 F.3d at 78. To deny an asylum claim for lack of sufficient corroboration, the court must (a) identify the particular pieces of missing, relevant documentation, and (b) show that the documentation at issue was reasonably available to the petitioner. See Qiu v. Ashcroft, 329 F.3d 140, 153 (2d Cir.2003) (citing Diallo, 232 F.3d at 285-90). Here, Lin had failed to produce documents, such as the lease agreement, a business license or invoices, which would corroborate the claim that he had run a bookstore. Moreover, Lin did not assert that these documents were unavailable. In fact, he stated that he had the license and that he either possessed or could produce the lease agreement. Lin’s claim that he gave some invoices to his attorney contradicts the fact that his attorney had no knowledge of any invoices.

The IJ further found that Lin had failed to produce affidavits from his parents, reasoning that because Lin had been in contact with his parents, such evidence was reasonably available. Cf. Zhou Yun Zhang, 386 F.3d at 78 (approving of IJ’s expectation of alien to provide a document normally in the possession of the aline’s wife when the wife had sent the alien similar documents in the past). Although it may have been improper for the IJ to fail to address Lin’s explanation that his parents could not write well, see Cao He [265]*265Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 403 (2d Cir.2005) (noting that an IJ must at least take a petitioner’s explanation into account), such error was harmless due to the other aspects demonstrating Lin’s lack of credibility, see Zhou Yun Zhang, 386 F.3d at 78 (holding that if an IJ independently finds that an applicant lacks credibility, errors in requiring corroboration do not require remand).

The IJ also properly found an inconsistency between Lin’s testimony and the statement attached to his asylum application with respect to the October 2001 incident prompting his departure from China. In the statement, Lin explained that he had decided to flee China to avoid arrest after hearing that officials were instituting a “harsh crackdown.” At the IJ hearing, however, Lin testified that the officials actually arrived at his house and ordered him to report for questioning in a few days. This discrepancy was material as it highlighted an aspect going to the heart of Lin’s asylum claim. See Diallo, 232 F.3d at 288.

To the extent that the IJ erred in basing his adverse credibility finding on minor inconsistencies — inconsistencies, for example, regarding the availability of the passport, the existence of a business partner, Lin’s parents bribing a police official— such was harmless. Cf. Cao He Lin, 428 F.3d at 395. Furthermore, although it was impermissible for the IJ to speculate that Lin fabricated a story just because he had sojourned for a few months with smugglers and other escapees abroad, cf. Secaida-Rosales, 331 F.3d at 307, 312, this error was also harmless. Cf. Cao He Lin, 428 F.3d at 395.

The BIA’s review of the other two inconsistencies cited by the IJ was likewise supported by substantial evidence. As to the inconsistency between the testimony and written statement attached to the asylum application regarding the location of the books, the gist of the statement was that Lin possessed politically sensitive books within the bookstore and aroused the customers’ curiosity and prompted discussion. The explanation that the translator somehow mistakenly added the words, “on the shelves,” is unpersuasive. Moreover, even taking out those words from the statement would not change its message, which, contrary to the testimony, made no mention of the fact that the books were hidden and were in another location. As such, this was a material inconsistency that would support a finding of adverse credibility. See Diallo, 232 F.3d at 288. As to the inconsistency regarding whether the police actually conducted a search for the hidden books, the BIA reasonably agreed with the IJ’s determination that Lin had attempted to embellish his story and make it appear that his confrontation with the police went further than he had described initially in his application. That his initial account would not mention such a fact was a material inconsistency. See id.

The IJ also properly denied Lin’s withholding of removal claim. A petitioner who fails to establish eligibility for asylum is “necessarily unable to establish eligibility for withholding of removal.” Zhou Yi Ni v. U.S. Dep’t of Justice, 424 F.3d 172, 175 (2d Cir.2005).

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167 F. App'x 263, Counsel Stack Legal Research, https://law.counselstack.com/opinion/xin-song-lin-v-gonzales-ca2-2006.