Yong Lin v. U.S. Attorney General, 11th Cir. (2015)
Yong Lin v. U.S. Attorney General, 11th Cir. (2015)
Yong Lin v. U.S. Attorney General, 11th Cir. (2015)
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Case: 15-12186
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Case: 15-12186
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explicitly agrees with the findings of the IJ, we will review the decision of both the
BIA and the IJ as to those issues. Ayala v. U.S. Atty Gen., 605 F.3d 941, 948
(11th Cir. 2010). Because the BIA issued its own opinion in this case, we review
the BIAs opinion. As for the IJs findings with which the BIA explicitly agreed,
we will review the decisions of both the BIA and the IJ.
First, we agree with the government that we lack jurisdiction to review
several of Lins claims.
statutorily limited. Jimenez-Galicia v. U.S. Atty Gen., 690 F.3d 1207, 1209 (11th
Cir. 2012). The Immigration and Nationality Act (INA) provides that no court
shall have jurisdiction to review . . . [a]ny judgment regarding the granting of relief
under certain INA provisions, like 8 U.S.C. 1229b, governing cancellation of
removal. 8 U.S.C. 1252(a)(2)(B)(i). However, we retain jurisdiction to review
constitutional claims or questions of law raised upon a petition for review. 8
U.S.C. 1252(a)(2)(D). Cancellation of removal requires a showing of, inter alia,
exceptional and extremely unusual hardship to a citizen or lawful permanent
resident relative. 8 U.S.C. 1229b(b)(1)(D). While we have jurisdiction to review
non-discretionary legal decisions pertaining to statutory eligibility for discretionary
relief, a decision about whether an individual had established exceptional and
extremely unusual hardship is discretionary, and therefore, not reviewable.
Gonzalez-Oropeza v. U.S. Atty Gen., 321 F.3d 1331, 1332-33 (11th Cir. 2003).
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An asylum applicant must show by clear and convincing evidence that the
application has been filed within 1 year after the date of the aliens arrival in the
United States.
8 U.S.C. 1158(a)(2)(B).
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Accordingly, we
8 U.S.C.
1231(b)(3). The alien seeking withholding of removal bears the burden of showing
his eligibility, by showing that it is more likely than not that he will be persecuted
or tortured upon being returned to his country. Sepulveda, 401 F.3d at 1232. An
alien may satisfy this burden of proof in one of two ways: (1) by establishing past
persecution in his country based on protected grounds or (2) demonstrating a future
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threat to his life or freedom in his country based on a protected ground. Tan v.
U.S. Atty Gen., 446 F.3d 1369, 1375 (11th Cir. 2006); Sanchez v. U.S. Atty
Gen., 392 F.3d 434, 437 (11th Cir. 2004). The alien may show a future threat by
showing either that he more likely than not will be singled out for future
persecution or that in the country of removal, there is a pattern or practice of
persecution of a group similarly situated to the alien in which he is included or may
be identified. 8 C.F.R. 1208.16(b)(2).
An applicants testimony, if credible, may be sufficient to sustain his burden
of proof without corroborating evidence. Ruiz, 440 F.3d at 1255. Conversely, if
the applicant relies solely on his testimony, an adverse-credibility determination
may alone be sufficient to support the denial of an application. Forgue v. U.S.
Atty Gen., 401 F.3d 1281, 1287 (11th Cir. 2005). If, however, the applicant
produces other evidence of persecution, whatever form it may take, the IJ must
consider that evidence, and it is not sufficient for the IJ to rely solely on an
adverse-credibility determination in those instances. Id. When the IJ makes an
adverse-credibility finding, the applicant must demonstrate that the decision was
not supported by specific, cogent reasons or was not based on substantial
evidence. Ruiz, 440 F.3d at 1255 (quotation omitted).
For applications filed after May 11, 2005, a credibility determination may be
based on the totality of the circumstances, including: (1) the demeanor, candor, and
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responsiveness of the applicant; (2) the plausibility of the applicants account; (3)
the consistency between the applicants written and oral statements; (4) the internal
consistency of each statement; (5) the consistency of the applicants statements
with other record evidence, including country reports; and (6) inconsistencies,
inaccuracies, or falsehoods, regardless of whether they relate to the heart of an
applicants claim. 8 U.S.C. 1158(b)(1)(B)(iii). Even a tenable explanation for an
inconsistency will not compel reversal of the IJs credibility determination. Chen
v. U.S. Atty Gen., 463 F.3d 1228, 1233 (11th Cir. 2006).
Weve held that an IJ may consider contradictions between an airport
interview and later testimony, but should also consider that, unlike in a hearing, the
alien in an airport interview will not be represented by counsel and may be
intimidated by government officials, especially if he has been subject to abuses in
his home country. Tang v. U.S. Atty Gen., 578 F.3d 1270, 1279 (11th Cir. 2009).
However, weve distinguished between hearing testimony that provides a more
detailed elaboration upon the earlier airport interview and hearing testimony that
directly contradicts information from the airport interview. Shkambi v. U.S. Atty
Gen., 584 F.3d 1041, 1050 (11th Cir. 2009). Therefore, information supplied at
airport interviews can be useful and probative in evaluating an asylum applicants
credibility but such information must be used with care as to the nature of the
variances with subsequent statements. Id. at 1051.
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Here, substantial evidence supports the BIA and IJs finding that Lin was not
credible. The IJ and BIAs basis for the finding -- the inconsistency between Lins
merits hearing testimony of persecution based on his Christianity and his airport
interview statement that he was discriminated against based on his Buddhism -was specific and cogent, and the testimony directly conflicted. While Lin claims
this inconsistency is attributable to the influence of smuggler who had helped him
enter the United States, the smuggler was in Fiji at the time of the airport interview
in Hawaii, and Lin had already admitted that the passport given to him by the
smuggler was false. There was no apparent advantage to claiming discrimination
on the basis of Buddhism instead of the allegedly true story that he was fleeing
persecution on the basis of Christianity. There were also inconsistencies about the
language in which Lins airport interview was conducted -- hed initially said it
was in Cantonese, but when shown evidence that it was conducted in Mandarin, he
changed his testimony to say the interview was conducted in Mandarin with a
Cantonese accent. Further, the record reveals that Lin claimed hed fled China due
to religious persecution, but he did not practice Christianity in the United States
until he had been in the country for five years. In light of the adverse-credibility
finding, this record does not compel a finding that Lin proved he was eligible for
withholding of removal. Accordingly, we deny Lins petition as to this issue.
PETITION DISMISSED IN PART, DENIED IN PART.
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