2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-14-2009

Xia Lin v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2532

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 08-2532

___________

XIA LIN,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES

__________________________

Petition for Review of an Order of the

United States Department of Justice

Board of Immigration Appeals

(Agency No. A99-025-250)

Immigration Judge: Honorable Miriam K. Mills

_____________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

August 12, 2009

Before: RENDELL, GREENBERG and VAN ANTWERPEN, Circuit Judges

(Filed : August 14, 2009 )

_________

 OPINION OF THE COURT

_________

PER CURIAM

Xia Lin petitions for review of the Board of Immigration Appeals’ (“BIA”) final

order of removal. For the following reasons, we will grant her petition.
 Lin also claimed that she feared mistreatment for having left China illegally, but she 1

has not addressed that claim in her brief, so it is waived. See Alaka v. Att’y Gen., 456

F.3d 88, 94 (3d Cir. 2006).

2

I.

Lin, a native and citizen of China, arrived in the United States in March 2006

when she was eighteen years of age. She did not have a valid entry document, and the

Government commenced removal proceedings against her on that basis. Lin concedes

removability, but seeks asylum, withholding of removal and relief under the Convention

Against Torture (“CAT”) on the grounds that she fears mistreatment for her practice of

Falun Gong.1

The substance of Lin’s testimony before the Immigration Judge (“IJ”) is as

follows. (A.82-110.) Lin and her parents practiced Falun Gong, and Lin helped them

hand out Falun Gong fliers in public. On November 13, 2005, Lin was handing out fliers

when she received a call on her cellular phone from a neighbor, who had just seen four

Chinese policemen arrest her parents at their home. The neighbor told Lin that the police

had asked him and her parents for Lin’s whereabouts so that they could arrest her too, and

that she should run away. Lin fled to an aunt’s house. Authorities detained Lin’s parents

for approximately one month (and, according to Lin’s affidavit, beat and interrogated

them during that time). Lin stayed with her aunt for another three months after that, then

fled to the United States at her mother’s urging. In addition to her testimony, Lin

submitted a letter from her mother largely corroborating her account, the 2006 country
3

report, and various articles describing the Chinese government’s mistreatment of Falun

Gong practitioners.

The IJ opened Lin’s hearing by acknowledging that the only matter in dispute was

whether Lin is “a bonafide Falun Gong practitioner,” because, if so, the “country

background” establishes that she would face persecution in China. (A.81.) The IJ denied

relief, however, because she found that Lin was not credible and failed to provide

sufficient corroboration. The Board of Immigration Appeals (“BIA”) adopted the IJ’s

decision and added to it by emphasizing certain provisions of the REAL ID Act of 2005. 

Lin petitions for review.

II.

A.

We have jurisdiction under 8 U.S.C. § 1252(a)(1). “Because the BIA adopted the

IJ’s adverse credibility determination and added to that conclusion, we consider both the

IJ’s decision and that of the BIA.” Kaita v. Att’y Gen., 522 F.3d 288, 296 (3d Cir. 2008). 

 “This court reviews adverse credibility determinations under the substantial evidence

standard,” and may not disturb them unless “‘any reasonable adjudicator would be

compelled to conclude to the contrary.’” Id. (citation omitted). “Although our review of

a credibility finding is generally deferential, ‘that deference is expressly conditioned on

support in the record,’” Gabuniya v. Att’y Gen., 463 F.3d 316, 321 (3d Cir. 2006)

(citation omitted), and “‘adverse credibility determinations based on speculation or
 The provisions of the REAL ID Act regarding credibility determinations and 2

corroboration apply here, the former because Lin filed her asylum application after May

11, 2005, see Chukwu, 484 F.3d at 189, and the latter because they were effective

immediately upon enactment, see id. at 191. They do not, however, control our

disposition, which does not turn on whether the inconsistencies on which the IJ relied “go

to the heart of the applicant’s claim,” id. at 189; 8 U.S.C. § 1158(b)(1)(B)(iii), or on any

conclusion regarding the availability of corroborating evidence, see Chukwu, 484 F.3d at

191 & n.2; 8 U.S.C. § 1252(b)(4). “[T]he REAL ID Act does not change our rules

regarding the IJ’s duty to develop the applicant’s testimony[.]” Chukwu, 484 F.3d at 192.

4

conjecture, rather than on evidence in the record, are reversible,’” Kaita, 522 F.3d at 296

(citation omitted). 

In addition, although the IJ may reasonably expect corroboration of certain points,

IJs have a duty to develop the record, and thus may deny a claim for lack of corroboration

only when “(1) the IJ identifies facts for which it is reasonable to expect the applicant to

produce corroboration, (2) the applicant fails to corroborate, and (3) the applicant fails to

adequately explain that failure.” Chukwu v. Att’y Gen., 484 F.3d 185, 191-92 (3d Cir.

2007).2

B.

We note initially that the IJ took over much of Lin’s direct examination and

examined her aggressively at times. Lin does not argue that the IJ’s conduct by itself

warrants relief, and we do not believe that it does; the IJ did not exhibit the level of

intemperance or apparent partiality that we have condemned in other cases, see, e.g.,

Fiadjoe v. Att’y Gen., 411 F.3d 135, 154-57 (3d Cir. 2005), and, with the exceptions

discussed below, her questioning generally did not prevent Lin from establishing her case,
 In addition to raising argument addressed to these six grounds, Lin includes cursory 3

arguments on the issue of past persecution and the merits of her CAT claim. These issues

are not adequately argued for purposes of review, but, because neither the IJ nor the BIA

addressed the merits of these claims, Lin is free to argue them on remand.

5

cf. Kaita, 522 F.3d at 301. The tenor of the IJ’s questioning, however, together with the

substance of her conclusions, might leave one with the impression that she was seeking

justifications to deny Lin’s claims. We pause here to reiterate that “‘the procedures for

requesting asylum and withholding of deportation are not a search for justification to

deport.’” Mulanga v. Ashcroft, 349 F.3d 123, 135 (3d Cir. 2003) (citation omitted).

The IJ based her decision on the “totality of the circumstances,” (IJ Dec. at 11,

A.57), and relied on six grounds in particular, the first three going to Lin’s credibility and

the remainder going to the issue of corroboration. It is not clear whether the IJ or BIA

would have viewed any one or more of these grounds as dispositive in the absence of the

others. Thus, we likely would be required to remand even if only one of these grounds

were insupportable. See Chukwu, 484 F.3d at 191. As it turns out, however, the IJ’s

reliance on each of these six grounds either lacks record support or is otherwise

problematic.3

The first two grounds relate to the date of Lin’s parents’ arrest. First, the IJ relied

on a perceived inconsistency between Lin’s testimony that she was handing out fliers on

that day, which she testified was a Friday, and what the IJ believed was Lin’s previous

testimony that she handed out fliers only on Tuesdays. That was not Lin’s testimony. Lin
6

first testified that she handed out fliers “about once per week.” (A.85.) The IJ then took

over this line of questioning from counsel, and asked Lin: “What day of the week did you

usually pass out the fliers, what day of the week? You said once a week. What day of the

week did you pass out the fliers?” (A.87) (emphasis added). Lin answered: “Tuesday.” 

(Id.) She went on to testify, however, that her parents were arrested on a Friday, and that

she had been handing out fliers that day. (A.92.) The following then transpired:

Q. You earlier said you passed out fliers on Tuesdays. You also said you

passed out fliers only once a week. So now why are you passing them

out on Friday?

A. Because sometimes they came on Tuesdays, sometimes they came

Friday. And I only, only hand out fliers after (indiscernible).

Q. But why didn’t you testify earlier that you also passed them out on

Fridays? You testified here today that you passed out fliers once a

week on Tuesdays.

A. But earlier Your Honor did not ask me whether or not I passed out

fliers on any other day.

Q. No, I asked you when did you pass out fliers.

A. I say usually on Tuesday.

Q. Well, we could go back and listen, but you didn’t say usually. You

said Tuesdays. . . . And the record will speak for itself. You did not

say usually Tuesday. You said Tuesday. So I’ll give you one more

opportunity to explain why you’re now passing them out on Fridays. 

And you didn’t volunteer that day of the week earlier.

A. (No audible response.)

Q. Okay. Non-responsive. No response, so she doesn’t know.
7

(A.92-93.) Thus, the IJ mischaracterized Lin’s testimony in two respects—that Lin

handed out literature “only” once per week, and that she did so only on Tuesdays, though

Lin answered “Tuesday” in response to the IJ’s own question about which day of the

week she “usually” did so. Then, after Lin gave that explanation, the IJ incorrectly

rejected it and faulted Lin’s silence in the face of the IJ’s demand that she provide a

different one. Finally, when counsel tried to clarify the issue by asking Lin additional

questions, the IJ cut him off: “We’ve already gone through that, okay? So why are you

asking her now? She says Friday now. I asked her why she didn’t volunteer that earlier,

no response. So give it up. Let’s move on.” (A.94.) Thus, this perceived inconsistency

is not based on the record, and the IJ erred in relying on it.

Second, the IJ relied on the Western calendar to find that the day Lin claims her

parents were arrested, November 13, 2005, was a Sunday instead of a Friday as Lin had

testified. The IJ raised this issue sua sponte in between direct and cross-examination in a

way that seems more adversarial than impartial. The IJ began by asking Lin a series of

questions designed to get her to commit to her prior testimony that her parents were

arrested on a Friday, then sprang on her the fact that the Western calendar shows that it is

a Sunday. (A.101-05.) Along the way, perhaps rattled by the exchanges discussed above,

Lin first agreed that the date had been a Friday but then testified “[a]ctually, I’m not sure

what day was that day.” (A.102.) The IJ then established that the day had been a school

day, and that Lin went to school only on Monday through Friday and sometimes Saturday. 
 The Government argues that Lin’s counsel, despite raising this argument on review, 4

“conceded” at the hearing that Lin’s explanation regarding the Chinese calendar was

“false.” After Lin testified that “[t]he Chinese calendar is different than the Western

calendar,” the IJ asked Lin’s counsel, “Is that right, days of the week are different?” and

he replied “I don’t think so.” (A.104-05.) Counsel’s statement was not an affirmative

concession and was not evidence, as the IJ acknowledged by going on to ask Lin if she

had a Chinese calendar for the record. (A.105.) We, of course, express no opinion on

this issue in the first instance. We also express no opinion on whether, if Lin’s

(continued...)

8

(Id.) The IJ concluded her line of questioning by saying: “Well, let me just, all this has

been to show that November 13th, 2005, was on a Sunday. All right? Here’s the

calendar. We’ll put it in the record.” (A.104.) When the IJ asked Lin to explain, she

testified that “[t]he Chinese calendar is different than the Western calendar.” (Id.) The IJ

asked Lin if she had a Chinese calendar for the record. Lin did not, and the IJ did not

inquire further. In her decision, the IJ took administrative notice that the date in question

was a Sunday and stated that Lin’s explanation regarding the Chinese calendar was

“totally unsubstantiated by any proof.” (IJ Dec. at 12, A.58.) 

The IJ erred in rejecting Lin’s explanation solely because she did not corroborate

it. Lin had no reason to expect that the IJ might sua sponte raise an issue regarding a day

of the week that might require consultation of a Chinese calendar, and the IJ did not

address whether it was reasonable to expect such corroboration. See Chukwu, 484 F.3d

at 191-92. Even if it was, the IJ’s duty to develop the record required her to allow Lin to

obtain a calendar or at least inquire further before basing her denial of relief on this issue. 

See id. at 192.4
 (...continued) 4

explanation ultimately is shown to be inaccurate, that discrepancy by itself would warrant

the denial of her claims.

9

Third, the IJ relied on a prior immigration interview, during which Lin apparently

said that her parents practiced Falun Gong but not that she did too. The IJ and the parties

have referred to this interview alternately as an “airport interview,” a “detention

interview,” a “credible fear interview,” and finally, in the Government’s brief in this

Court, as Lin’s “initial immigration interview.” The record does not contain a transcript

or other documentation of the interview itself, and the only record references to this

interview are the Government counsel’s characterization of its contents. (A.105-06.) Lin

does not dispute those characterizations, but the IJ erred in relying on them.

The IJ’s reliance on the interview is problematic initially because there is no

documentation of the interview in the record. “To determine whether [a discrepancy with

an airport interview] constitutes substantial evidence to support the IJ’s and BIA’s

adverse credibility determinations, it is necessary to examine the circumstances in which

the statement was given.” Fiadjoe, 411 F.3d at 159. Thus, “[w]e repeatedly have

emphasized that we are ‘generally skeptical’ of using reports of asylum interviews as the

basis for finding an applicant lacks credibility where the context for such interviews is

unclear.” Korytnyk v. Ashcroft, 396 F.3d 272, 289 (3d Cir. 2005). In this case, we do

not even have a report. See id. at 289-90 (refusing to uphold adverse credibility

determination based on interview whose contents were not of record).
 There is no record support for that conclusion. The only reference in the record to Lin 5

having told the interviewer that she handed out Falun Gong literature is this statement by

the Government’s counsel, which Lin did not adopt:

Q. You weren’t scared to tell the officer that you helped your parents

out by passing out pamphlets, but you were scared to tell the officer

that you practiced Falun Gong, is that what you’re saying?

A. I was afraid that he will send me back.

(A.107.) 

10

Moreover, the IJ’s refusal to accept Lin’s explanation for this apparent discrepancy

is problematic as well. When confronted with the discrepancy on cross-examination, Lin

explained, in response to several questions: “I was scared at that time. I dare not tell them

I was practicing Falun Gong. . . . [A]t that time I was scared to seeing strangers. . . . I

was afraid that he will send me back.” (A.106-07.) The IJ found this explanation

“incredulous [sic]” because, according to the IJ, Lin “acknowledged her activity with

Falun Gong in passing out fliers.” (IJ Dec. at 12, A.58.) The IJ also found that Lin’s 5

explanation “defied credibility because the very reason respondent came to the United

States was to freely practice Falun Gong,” and her fear of telling the Immigration officer

that she had practiced in China was “inconceivable.” (Id.) As we have repeatedly

recognized, however, “an arriving alien . . . may be reluctant to reveal full information in

his or her first meeting with the government.” Fiadjoe, 411 F.3d at 159. Thus, there is

nothing “inconceivable” about Lin’s reluctance to tell the interviewer more than she did,

whatever that may have been.
11

Fourth, the IJ noted that the corroborating letter from Lin’s mother did not mention

that Lin spent four months in hiding at her aunt’s house, and concluded that the omission

“contradicts” Lin’s testimony that she did so. The letter from Lin’s mother, however,

corroborates Lin’s practice of Falun Gong and her parents’ arrest, and goes on to state

that “[a]fter I was released, I knew my daughter was hiding outside. She dared not go

back. I decided to send my daughter abroad.” (A.115.) This letter does not “contradict”

Lin’s testimony merely because it does not contain the same level of detail. Moreover,

Lin explained that her mother may have thought that detail unimportant because her

aunt’s house was very far away. (A.95-96.) The IJ did not acknowledge that explanation

or discuss why she found it unacceptable. See Chukwu, 484 F.3d at 192.

Fifth, the IJ noted that Lin had not provided any corroboration from her aunt. 

When asked why, Lin testified that her aunt had a stroke shortly after Lin came to the

United States and could neither speak nor write. (A.94.) The IJ stated that “[t]he Court

finds that this was just a convenient excuse.” (IJ Dec. at 13, A.59.) There is no record

support for this insensitively-phrased “finding.” The IJ went on to state that, assuming

Lin’s explanation were true, then it would provide all the more reason to expect her

mother’s letter to mention the aunt’s role in hiding Lin. As explained above, however,

the IJ did not discuss why she found Lin’s explanation regarding her mother’s letter

unacceptable. 

Finally, the IJ found that Lin “was not believable when she explained why there
 Although we assume that Lin’s practice of Falun Gong in the United States might have 6

some relevance to her claims, we note, and the BIA should bear in mind on remand, that

her claim is based on her practice of Falun Gong in China and on Chinese authorities’

efforts to arrest her on that basis.

12

was no one to corroborate her practice [of Falun Gong] in the United States.” (Id.) The 6

IJ’s two reasons for rejecting Lin’s explanation are based on speculation, not on the

record. Lin testified that she practices Falun Gong at her home, which she shares with

one other person, and that her house mate had never witnessed her practice Falun Gong. 

(A.97.) The IJ apparently found that circumstance unbelievable, but the record contains

no basis to conclude that Lin’s house mate necessarily would have seen her practicing

Falun Gong. The IJ apparently found unbelievable Lin’s testimony that she did not know

her house mate’s name as well, though the IJ did not mention Lin’s testimony that she

knows him by his surname “Li.” (A.97.)

Lin also testified about a friend of hers who had helped her find the house, and

testified that she had not mentioned her practice of Falun Gong to that friend because she

considered it a “private issue” and “didn’t want to bother (indiscernible).” (A.99-100.) 

She further testified that she felt a “shadow in [her] mind” regarding Falun Gong in light

of what happened to her in China. (A.100.) The IJ found this testimony “inexplicable”

because Lin had practiced openly in China even though it was illegal, came to this

country to practice openly, and it was thus “not understandable why she would hide her

practice of Falun Gong from such a friend.” (IJ Dec. at 13-14, A.59-60.) This conclusion
13

mischaracterizes Lin’s testimony. She did not say that she “hid” her practice from her

friend, only that she did not share it because she considered it a “private issue.” This

conclusion also is based on speculation about the nature of the friendship.

In sum, each of the grounds on which the IJ denied Lin’s claims either lacks record

support or is otherwise problematic. The BIA did not state any independent basis for

denying Lin’s claims. Instead, it merely noted the provisions of the REAL ID Act

governing credibility and corroboration and concluded that the IJ’s adverse credibility

finding “is sufficiently supported by the record.” Though our review is deferential, we

are constrained to disagree. We do not suggest that Lin in fact has shown that she is

eligible for asylum or entitled to withholding of removal or other relief under CAT. 

Instead, we conclude only that the grounds on which the IJ and BIA denied her claims are

not supportable. Accordingly, we will vacate the BIA’s order of removal and remand for

further proceedings.