Hua Lin v. Eric Holder, Jr.
OPINION filed : AFFIRMED, decision not for publication pursuant to local rule 28(g). Eugene E. Siler , Jr., Circuit Judge; Eric L. Clay, Circuit Judge and Julia Smith Gibbons, Authoring Judge.
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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0129n.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Feb 28, 2011
HUA TU LIN,
ERIC HOLDER, JR., United States
LEONARD GREEN, Clerk
ON PETITION FOR REVIEW FROM A
FINAL ORDER OF THE BOARD OF
Before: SILER, CLAY, and GIBBONS, Circuit Judges.
JULIA SMITH GIBBONS, Circuit Judge. Petitioner-appellant Hua Tu Lin (“Lin”)
appeals a final order of the Board of Immigration Appeals (“BIA”), adopting in part the reasoning
of the Immigration Judge (“IJ”), to remove him from the United States and to deny his application
for asylum, withholding of removal, and protection under the both the Immigration and Nationality
Act (“INA”), 8 U.S.C. § 1101 et seq., and the Convention Against Torture (“CAT”), 18 U.S.C. §
2340 et seq. Lin claims that substantial evidence does not support the denial of his claims. For the
following reasons, we affirm the decision of the BIA, denying Lin’s application for asylum.
Lin is a national of the People’s Republic of China (“China”). In May 2006, Lin left China
and traveled to Malaysia in order to obtain a Taiwanese passport. He returned to China a week later
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before flying to Russia, Holland, Guatemala, and Mexico. From Mexico, Lin entered the United
States without inspection near Hidalgo, Texas, in July 2006. Border patrol officials apprehended Lin
shortly thereafter and charged him with removability under 8 U.S.C. § 1182(a)(6)(A)(i), on the
grounds that he was neither admitted nor paroled into the United States. In August 2006, Lin
admitted the allegations and conceded removability. He moved to Cleveland, Ohio, in August 2006.
In November 2006, Lin filed an application for asylum and for withholding of removal on
the basis of religion, political opinion, and membership in a particular social group. Lin claimed he
had “suffered mistreatment and persecution by the Chinese Government because [he is] a Christian”
and that he would be punished if he returned to China both because of his faith and because he left
China illegally. Specifically, Lin testified that he and his family had previously attended “service
and gathering” and “Sunday Mass” in the home of their “preacher, Father Nie” in the town of Min
Ching. Because Nie’s gathering was not a registered church, Lin claimed, the Chinese government
had investigated the group and detained some members, sending them to the Public Security Bureau
for Ideology Re-education sessions. Lin’s family left Min Ching shortly after the investigations and
moved to Lianjiang County, where they began to attend a government-registered church without
incident. Lin, however, returned to Min Ching for high school. Lin claimed to have stayed with
Father Nie and taken a more active role in Nie’s church as Nie’s “assistant.”
Nie also claimed to have started a student group in high school dedicated to Bible study. The
group was not registered as required, and when the school authorities discovered the group, Lin was
expelled. After the expulsion, Lin eventually left Min Ching and moved back to live with his family,
but he would periodically return to Father Nie’s church. Lin alleged that the Chinese government
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again detained members of Nie’s church in December 2005, this time as they attended Christmas
Mass. Lin claimed he escaped the police officers and went into hiding for six months. He also
claimed to have learned from his parents that they had received a detention order for Lin from the
Police Security Bureau and that police officers had come to his parents’ home to arrest him. Lin said
in his application that the police wanted him based on his assistance to Father Nie and efforts to
“rally students in school for [an] anti-Government campaign.” Based on these events, Lin left for
the United States as soon as his father could make arrangements.
On November 14, 2007, Lin testified at a hearing pursuant to the removal proceeding. He
largely retold the same story he had written in his 2006 application, though there were some
discrepancies between the two accounts. Lin, for instance, testified in the immigration court that his
family had not received a written report from the Chinese authorities that were supposedly looking
to detain him. At court, he called his religious leader in China “Pastor Nie,” rather than “Father Nie”
as he had in the written application. When asked about the circumstances of his expulsion from high
school, Lin at times asserted that he had been expelled because he violated the school’s policy
forbidding secret clubs, not because the club he had formed was involved in Christian studies. Lin
also testified he was born in 1985, despite his birth certificate saying that he was born in 1988; he
could not explain the discrepancy.
Lin also provided more details about his account. He testified that the first government
interruption at Nie’s house was in the spring of 1998. Neither he nor his family had been harmed
during that first intervention, and they had returned home the same evening. During the alleged
government persecution at Father Nie’s house in December 2005, Lin explained that he “managed
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to escape through the back door” and thereby avoid the authorities. He also testified that his family
now lives in Lianjiang and continues to attend the government-registered church without incident.
And when asked about his traveling to the United States, Lin admitted he did not seek asylum in any
of the four countries through which he traveled.
Lin also provided details about developments since he arrived to the United States. He
asserted that he began practicing as a Jehovah’s Witness in December 2006. He also testified that
were he returned to China, he would continue to practice as a Jehovah’s Witness—his current
religion—and would “spread the gospel,” which he believed would cause him to be reported to the
government and “attacked . . . severely.” On cross-examination, however, Lin could not explain
certain foundational facts about Jehovah’s Witnesses, such as what a “pioneer” and a “kingdom hall”
were, or what the names of the different stages of the ministry are. Lin also incorrectly answered
some questions regarding more fundamental Christian tenets; Lin, for instance, testified that Jesus
is referred to by name and appears in the Old Testament.
After the November hearing, the IJ denied Lin’s applications for relief and withholding of
removal pursuant to § 241(b)(3) and the CAT. The IJ first found Lin not to be a credible witness,
both because his testimony was “not consistent with his written application” in places and because
he “did not appear to answer all questions sincerely, and forthrightly, and truthfully.” The IJ noted
the “vague generalities” of Lin’s testimony about Christianity, comprising mostly “broad references
to the Bible, and the gospel” without further explication of his faith. Similarly, the IJ noted Lin’s
failure to explain in any detail what precise restrictions the government had placed on his religious
practice, given the ability of his parents to practice Christianity at a registered church. While the IJ
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opined that he did “not expect the respondent to provide a detailed theology . . . [Lin] should explain
something about the specific beliefs that he claims to hold and which he says have and will cause
him trouble in China.”
The IJ also highlighted the inconsistencies between Lin’s oral testimony and the supporting
documentation submitted by Lin. The opinion emphasized the discrepancy over the existence of a
written detention order his family supposedly received from the police. The IJ also noted that none
of the supporting affidavits from Lin’s family corroborated his testimony about the police having
physically visited his family to look for Lin. As to Lin’s testimony about his religious practices in
China, the IJ noted that Lin did not describe himself as Father Nie’s assistant during his oral
testimony before the IJ as he had in his written application and was inconsistent as to whether Nie
was referred to as “Father Nie” or “Pastor Nie.”
Second, the IJ found that Lin had not met his burden of proof that he suffered past
persecution in China. Even accepting Lin’s account that he was “held for a few hours on one
occasion,” the IJ noted that Lin himself acknowledged he had not suffered abuse or physical
mistreatment. Lin’s ability to worship at his parent’s registered church, moreover, undermined his
claim that he was persecuted, and because Lin could not specify what precise religious freedoms he
had been denied by the Chinese government, the IJ concluded his case for past persecution was
Third, the IJ found that Lin had not demonstrated a well-founded fear of future persecution
should he return to China. Because the IJ concluded there was no showing of past persecution, the
IJ did not presume future persecution was likely: “There is simply no proof other than the
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respondent’s own words that the government of China is interested in him today or would wish to
persecute him.” The IJ reiterated Lin’s imprecision with respect to the religious ideas that
endangered him. Similarly, the IJ emphasized the lack of support to Lin’s claim that Chinese
authorities were actively searching for him. Even accepting the documentation of general religious
intolerance in China, the IJ concluded that there was no evidence to support the argument that Lin
had an objectively reasonable fear of persecution on account of his religion.
Lin appealed the IJ’s decision to the BIA, specifically challenging the IJ’s adverse credibility
determination and the rulings that Lin had failed to carry his burden as to either past persecution or
future persecution. The BIA dismissed the appeal in August 2009. The BIA found that the IJ did
not clearly err in finding Lin non-credible, given the inconsistencies in the record about Lin’s age
and the circumstances of his expulsion from high school, as well as the vagueness of Lin’s testimony
about his religious beliefs. Alternatively, the BIA affirmed the IJ’s determination that, even if Lin
was found credible, he failed to meet his burden to establish his eligibility for relief. Like the IJ, the
BIA noted the lack of documentation supporting Lin’s claim that Chinese authorities were searching
for him, undermining his claim of an objectively reasonable fear of future persecution. Lin timely
petitioned this court for review following the dismissal.
This court has jurisdiction to review the BIA’s order pursuant to 8 U.S.C. § 1252(a)(1).
Where, as here, the BIA does not summarily affirm the IJ’s decision, but reviews the IJ’s decision
and issues a separate opinion, this court reviews the BIA’s decision as the final agency
determination. Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009). Lin argues that it is only proper
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for this court to review the BIA’s decision and not the underlying opinion of the IJ. This circuit’s
precedent, however, firmly establishes that “[t]o the extent that the BIA adopted the [IJ’s]
reasoning, this Court also reviews the [IJ’s] decision.” Id. Here, all of the BIA’s conclusions are
framed as reviews of the IJ’s opinion, rather than as a direct review of the administrative record
itself. By casting its own opinion as a review of the IJ’s findings, the BIA implicitly adopts
substantial portions of the IJ’s opinion; we therefore review the IJ’s reasoning in addition to the
Relevant administrative factual findings are reviewed under the deferential substantial
evidence standard. The BIA’s factual findings (including those adopted from the IJ’s decision) must
be upheld if “supported by reasonable, substantial, and probative evidence on the record considered
as a whole.” Yu v. Ashcroft, 364 F.3d 700, 702 (6th Cir. 2004) (quoting INS v. Elias-Zacarias, 502
U.S. 478, 481 (1992) (internal quotation marks omitted)). Under this standard, findings of fact by
the BIA and the IJ are conclusive unless any reasonable adjudicator would be compelled to conclude
to the contrary. 8 U.S.C. § 1252(b)(4)(B). This court may not reverse simply on the grounds that
it would have decided the matter differently or that the evidence supports a contrary conclusion.
Koliada v. INS, 259 F.3d 482, 486 (6th Cir. 2001). To reverse, the evidence must “not only
support a contrary conclusion, but indeed compel it.” Id. (internal quotation marks omitted).
Lin makes four separate but related substantive challenges to the BIA’s decision. We review
each of these in turn.
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Lin first argues that there is insufficient evidence to support the BIA’s adverse credibility
determination. Credibility determinations are governed by the new standard adopted by Congress
in the REAL ID Act of 2005, which applies to Lin’s application because it was filed after May 11,
2005. Yacoub v. Holder, 337 F. App’x 511, 514 (6th Cir. 2009). The relevant statutory passage
Considering the totality of the circumstances, and all relevant factors, a trier of fact
may base a credibility determination on the demeanor, candor, or responsiveness of
the applicant or witness, the inherent plausibility of the applicant’s or witness’s
account, the consistency between the applicant’s or witness’s written and oral
statements (whenever made and whether or not under oath, and considering the
circumstances under which the statements were made), the internal consistency of
each such statement, the consistency of such statements with other evidence of record
(including the reports of the Department of State on country conditions), and any
inaccuracies or falsehoods in such statements, without regard to whether an
inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim, or
any other relevant factor.
8 U.S.C. § 1158(b)(1)(B)(iii).
Both the IJ and BIA based their conclusions about Lin’s credibility on (1) inconsistencies
between Lin’s testimony and other documentation and (2) the “vague generalities” within parts of
Lin’s testimony about his religious practice and persecution, which the IJ attributed to Lin’s failure
“to answer all questions sincerely, and forthrightly, and truthfully.” Both of these findings are
relevant to the credibility determination under § 1158(b)(1)(B)(iii).
The consistency of an
applicant’s account is an explicit metric to be used in order to measure credibility; greater specificity
in one’s testimony corresponds to greater candor and responsiveness, in addition to being permitted
for consideration under the “any other relevant factor” catch-all. § 1158(b)(1)(B)(iii).
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The finding that Lin’s testimony was inconsistent is supported at multiple points in the
record. The record reveals a discrepancy over whether Lin’s family ever received a written detention
order from the police. When asked about the circumstances of his expulsion from high school, Lin
at times asserted that he had been expelled because he violated the school’s policy forbidding secret
clubs, not because the club he had formed was involved in Christian studies. In addition, Lin
testified he was born in 1985, despite his birth certificate saying that he was born in 1988; he could
not explain the discrepancy.
Similarly, the record supports a finding that Lin was not forthright and candid during the
application process. The IJ rightly noted that Lin never explained what precise restrictions the
government placed on his religious practice, given the ability of his parents to practice Christianity
at a registered church. This failure to highlight his fear of persecution dovetails with Lin’s very
opaque description of his own religious beliefs, which never became more specific than general
references to the Bible and his desire to “spread the gospel.”1 Lin also never offered any concrete
testimony about the government authorities that were searching for him when he fled China in 2006,
other than to say that they had visited his parents. For these reasons, the record amply supports the
BIA’s conclusion that Lin was not a credible witness, and we affirm the finding.
Lin rightly notes that “[m]any deeply religious people know very little about the origins,
doctrines, or even observances of their faith.” Iao v. Gonzalez, 400 F.3d 530, 534 (7th Cir. 2005).
The issue here, however, is not whether Lin is in fact religious, but whether his testimony by itself
is credible or requires corroborating evidence to support his application. The depth of Lin’s religious
knowledge has probative value as to establishing credibility.
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Second, Lin challenges the BIA’s alternative finding that, even if Lin’s testimony was found
to be credible, he did not meet his burden of establishing past persecution. In order to demonstrate
that he is eligible for asylum, Lin must show that he qualifies as a refugee by providing evidence to
“establish either that he has suffered actual past persecution or that he has a well-founded fear of
future persecution,” on account of race, religion, nationality, membership in a particular social group,
or political opinion. Pilica v. Ashcroft, 388 F.3d 941, 950 (6th Cir. 2004); see 8 U.S.C. §
While persecution is not statutorily defined, this court has previously expounded on what
constitutes persecution for purposes of asylum claims:
Persecution encompasses more than threats to life or freedom; non-life threatening
violence and physical abuse also fall within this category. However, to sustain an
asylum application, the conduct must rise above mere harassment. Types of actions
that might cross the line from harassment to persecution include: detention, arrest,
interrogation, prosecution, imprisonment, illegal searches, confiscation of property,
surveillance, beatings, or torture.
Gilaj v. Gonzales, 408 F.3d 275, 285 (6th Cir. 2005) (internal quotation marks omitted). This court
has also noted that “‘persecution’ within the meaning of 8 U.S.C. § 1101(a)(42)(A) requires more
Lin also seeks withholding of removal in addition to discretionary relief of asylum. Under
8 U.S.C. § 1231(b)(3), “[a]n alien seeking withholding of removal must demonstrate that there is a
clear probability that he will be subject to persecution if forced to return to the country of removal.”
Singh v. Ashcroft, 398 F.3d 396, 401 (6th Cir. 2005) (citations and internal quotation marks omitted).
“Because an alien must meet a higher burden in establishing a right to withholding of removal than
in demonstrating asylum eligibility, an alien who fails to qualify for asylum necessarily does not
qualify for withholding of removal.” Id. Because Lin has not satisfied the asylum burden, he has
also failed to qualify for withholding of removal.
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than a few isolated incidents of verbal harassment or intimidation, unaccompanied by any physical
punishment, infliction of harm, or significant deprivation of liberty.” Mikhailevitch v. INS, 146 F.3d
384, 390 (6th Cir. 1998).
Lin testified that he was detained only once briefly and “reeducated” about Christianity, and
even then, Lin admitted that his detention was not because he was specifically targeted by the police,
but rather because his father was taken to the police station. The second time that government
authorities allegedly came to Father Nie’s house while Lin was present, Lin was neither harmed nor
even confronted because he escaped. These two facts might establish that Lin was harassed by the
authorities because of his religious activities, but “[h]arassment alone, however, does not rise to the
level of ‘persecution’ under the Act.” Mikhailevitch, 146 F.3d at 390.3 Lin’s expulsion from high
school does not amount to persecution because a reasonable reading of the record leads to the
conclusion that he was expelled for participation in a secret club, not because he was practicing
Christianity. Similarly, Lin’s claims about the Chinese government’s searching for him in 2005 and
2006 do not prove any government attacks on him rose to the level of persecution. Even fully
accepting Lin’s testimony and considering the evidence cumulatively, therefore, the record does not
compel reversing the BIA’s conclusion as to past persecution.
In Mikhailevitch, the court faced a set of facts similar to (if not more serious than) this case.
The applicant in Mikhailevitch alleged he had been interrogated and threatened on several occasions
by the Russian government because of his religious activities; he also claimed Russian authorities
searched his home and place of work for the same reasons. 146 F.3d at 387. This court, however,
affirmed the BIA’s conclusion that the petitioner had failed to establish past persecution. Id. at 390.
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Third, Lin claims the BIA erred in concluding that he failed to establish an objectively
reasonable fear of future persecution. Lin has the burden of proving a reasonable fear that he would
be persecuted were he to return to China. Mapouya v. Gonzales, 487 F.3d 396, 412 (6th Cir. 2007).
Because he has not proven that he was subject to past persecution, Lin is not entitled to the
presumption that he will suffer future persecution.
Lin claims that because the police were looking for him when he left China, his fear of future
persecution is reasonable. As the BIA and IJ both noted, however, whether the police were actively
searching for Lin, and why, is debatable. Lin has also offered State Department reports and media
accounts chronicling Chinese hostility towards religious groups.
But these reports are not
unequivocal; for instance, one State Department report offered by Lin states “[Chinese] [l]ocal
authorities’ handling of unregistered religious groups . . . varied widely,” and “[t]he extent of
religious freedom continued to vary widely within the country.” Lin’s family’s own experience in
the registered church undermines Lin’s reliance on gross generalizations about Chinese policy
towards Christianity. Therefore, the record does not compel reversing the BIA decision as to the
threat of future persecution.
Finally, Lin argues that the record compels the finding that he is entitled to protection under
the Convention Against Torture. An applicant for relief under the CAT “bears the burden of
establishing it is more likely than not that he or she would be tortured if removed to the proposed
country of removal.” Almuhtaseb v. Gonzales, 453 F.3d 743, 749 (6th Cir. 2006) (internal quotation
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marks omitted); see also 8 C.F.R. § 1208.16(c)(2). Torture is defined as “any act by which severe
pain or suffering, whether physical or mental, is intentionally inflicted on a person,” for one of
several enumerated purposes, “by or at the instigation of or with the consent or acquiescence of” the
government. Id. § 1208.18(a)(1).
Having never been tortured himself, Lin relies entirely upon the general experiences of
others. He points to one passage in a State Department country report, which notes that torture
remains a widespread practice in China against those detained. This comment alone may establish
that Lin has a non-zero chance of being tortured should he return to China, but it does not establish
that it is “more likely than not” that he would be tortured. Lin has not even established conclusively
that he would be detained, so the probative value of this article is particularly weak. Therefore, Lin
has not satisfied his burden under the CAT provisions, and the record does not compel reversal of
Because substantial evidence in the record supports the IJ’s and BIA’s findings as to Lin, we
affirm the decision of the BIA.
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