Long-Gang Lin v. Holder

In the

United States Court of Appeals

For the Seventh Circuit

No. 10-1401

L ONG-G ANG L IN,1

Petitioner,

v.

E RIC H. H OLDER, JR., Attorney General

of the United States,

Respondent.

Petition for Review of an Order

of the Board of Immigration Appeals.

No. A200-112-626

A RGUED S EPTEMBER 28, 2010—D ECIDED D ECEMBER 23, 2010

Before E ASTERBROOK, Chief Judge, and S YKES and T INDER,

Circuit Judges.

T INDER, Circuit Judge. Long-Gang Lin sought asylum

and withholding of removal based on his wife’s alleged

1

Petitioner’s first and last names were transposed on his

Notice to Appear and in the Board’s decision. We have cor-

rected this to show his name as “Long-Gang Lin.” The docket

should be corrected as well.

2 No. 10-1401

forced abortion. An Immigration Judge (“IJ”) denied

relief based on an adverse credibility determination. The

Board of Immigration Appeals (“Board”) affirmed. Lin

petitions for review of the Board’s decision, contending

that the Board erred in affirming the IJ’s adverse credi-

bility determination. He also argues that the IJ and

Board failed to recognize the ineffective assistance of

his counsel and that he was denied his right to a fair

hearing. Lastly, he claims that the IJ should have

inquired into his competency to testify.

I. BACKGROUND

Lin is a native and citizen of the People’s Republic of

China. He entered the United States on August 25, 2005.

The Department of Homeland Security (“DHS”) served

him with a Notice to Appear and charged that he was

subject to removal. Lin admitted the allegations in the

Notice and applied for asylum and withholding of re-

moval. He submitted supporting documentation, in-

cluding purported abortion and sterilization certificates

for his wife. DHS submitted Forensic Document Labora-

tory (“FDL”) findings concerning the certificates, and the

IJ continued the proceedings to allow Lin to respond.

Thereafter, Lin submitted a letter from his attorney chal-

lenging the FDL findings.

On April 16, 2008, the IJ held a hearing at which Lin

testified. He stated that the documentation attached to his

asylum application was genuine. He said that he had

reviewed the contents of his application and that every-

thing in it was true. Lin was born in Fuzhou City, Fujian

No. 10-1401 3

Province, China in 1967 and married Yong Chen in 1996.

They have a daughter who was born in 2000. Lin stated

that he had a second-grade education and could not read

or write. He worked at a thermos factory from 1987

through 1996, when he was fired for being “disruptive.”

He explained that he would “sometimes hav[e] troubles

with [his] co-workers, like . . . coming to blows.” In 1996,

Lin opened a diner but was forced to close it in 2001 to

make room for new development. Neither Lin nor his

wife has worked since 2001; they have supported them-

selves and their daughter on their savings. Lin’s wife

still lives in Fuzhou.

Lin said that he and his wife wanted to have a second

child because it had been “quite a while” since their

daughter’s birth. He “knew a little bit” about China’s

one child policy, including that they had to apply for

permission to have a second child. They did not do so.

He also knew that if they had a second child, they

would have to pay a social compensation fee which

they could not afford. According to Lin, his wife

complied with the requisite quarterly pregnancy tests,

but he had no documentation to prove it. He claimed

that he told her not to go for the check-ups, but she did

because the neighborhood birth control office told her

she had to report.

Lin testified that his wife became pregnant with

their second child in September 2004 and that on Septem-

ber 10, people from the neighborhood committee came

to their house and discovered the pregnancy. He said

that the committee conducted random checks and checks

4 No. 10-1401

when they suspected someone might be violating the

family planning laws. When questioned regarding how

far along his wife was in the pregnancy, Lin stated that

she was a little more than three months pregnant and

that she looked pregnant. According to Lin, the mem-

bers of the committee took his wife by force to the neigh-

borhood committee office. He claimed he tried to resist

and they “came to some physical contact”—“almost” to

the point of “using fists.” He did not injure anyone, but

said he threatened to do so. He added that they

pushed each other, but did not knock each other down.

Lin stated that he followed his wife to the neighborhood

committee office where there was more “pushing

around.” They were in the office for about twenty min-

utes. Lin claimed his wife was eventually taken away to

a local hospital to have an abortion. When asked if she

had any operation other than the abortion, he re-

sponded that she had not. He explained that he did not

go to the hospital with his wife because the committee

members told him that it was his “wife’s . . . problem

only” and if he followed her, he would be “in

trouble too.” The IJ asked Lin about the purpose of the

stop at the committee office on the way to the hospital.

Lin could offer no explanation other than that “they

took my wife there.”

Lin later stated that the abortion occurred on Decem-

ber 25, 2005. Subsequently, when asked when his wife

was taken to the hospital, he answered, “December 5,

2003.” The IJ asked Lin if he was sure about the date,

and Lin replied that the abortion occurred in Decem-

ber 2004. He then claimed that “the matter that hap-

No. 10-1401 5

pened at the hospital . . . happened the next day.” The

IJ sought clarification of the dates and events. Lin said

that the people from the neighborhood committee came

to his house “August 20 something 2004.” The IJ in-

dicated that Lin was giving different answers to the

same question and again asked him for the date on

which the neighborhood committee went to his house

and discovered his wife’s pregnancy. Lin said, “2004.” The

IJ asked him to be more specific, and Lin claimed that

“they discover[ed] the pregnancy in May 2004.” This

prompted the IJ to ask how the members of the com-

mittee discovered that his wife was pregnant in

May 2004. Lin claimed that her pregnancy was visible

at that time. The IJ pressed further on the date, and

Lin said that the officials came to his house in May to “do

[a] regular check” for compliance at which time his

wife was not pregnant. He stated that they came again

in September 2004 and found her pregnant. The IJ asked

if a pregnancy test was administered. Lin said that ultra-

sound technology was used in a hospital. The IJ asked

when the abortion occurred; Lin answered, “Decem-

ber the 5th, 2004.” The IJ inquired whether Lin knew

that was the third date he had given, and Lin explained

that he had remembered that the date was December 5,

2004. According to Lin, his wife did not agree to the

abortion but that did not “matter because the decision

was made by the committee.”

Lin stated that he had an x-ray report to prove that his

wife had an abortion. He claimed the doctor sent the

report to his house in China and his wife mailed it to

him. He claimed that the report said that pregnancy is

6 No. 10-1401

forbidden and his wife is not allowed to become preg-

nant. When the IJ asked if anything was done to prevent

his wife from becoming pregnant again, Lin said, “They

didn’t do anything. They just told us that no pregnancy

anymore.” Lin testified that both he and his wife were

physically capable of having another child.

The IJ asked Lin why he feared returning to China. Lin

responded that he “would be unemployed” and he

could not find work because he was uneducated and

illiterate. Lin admitted that this was part of the reason

he came to the United States and claimed the other

part was the loss of his second child.

As mentioned, Lin submitted documentation to sup-

port his claim. In his political asylum statement sub-

mitted with his application, Lin wrote that his wife

became pregnant for the second time in September 2004

and that on December 5, 2004, the family planning

officials came to their home and took her to the hospital

to have an abortion and sterilization. Lin had a letter

and translation of a radiology examination report, in-

dicating that Yong Chen, his wife, had both fallopian

tubes sterilized. He also submitted a letter from his

wife in which she said that she became pregnant the

second time in September 2004 and that she was taken

on December 5 to a hospital to have a forced abortion

and sterilization. She claimed that she received the abor-

tion and sterilization certificates from the officials of

the neighborhood family planning office later that

month. Finally, Lin provided translated certificates in-

dicating that an abortion and sterilization were per-

No. 10-1401 7

formed on Yong Chen on December 5, 2004. DHS submit-

ted the findings of a forensic document examiner who

determined that “[i]t is unlikely that [the abortion and

sterilization certificates] are genuine.” Several reasons

were given to support this determination. Lin responded

with a letter from his then-attorney Li Nan Chiang.

On April 16, 2008, the IJ issued an oral decision. Based

on Lin’s concession of removability and admission of

allegations in the Notice to Appear, the IJ found him

removable as charged. She then considered his applica-

tion for asylum and withholding of removal. The IJ took

into account Lin’s “limited education and alleged func-

tional illiteracy” and his demeanor while testifying and

found him not credible. She noted that he “was unable

to provide the most basic of information that forms

the very foundation of his claim” and determined

that “[t]he inconsistencies in his testimony are so signifi-

cant . . . that they warrant this finding of incredibility.”

The IJ gave several reasons for her adverse credibility

determination. First, Lin was unable to provide a

plausible explanation as to how the members of the

neighborhood committee immediately determined that

his wife was pregnant. The IJ also relied on the “sub-

stantial inconsistencies” in the dates for the abortion

that Lin provided, noting he had given three different

dates. The IJ said that she did not find “anything in

[Lin’s] behavior, demeanor, background, et cetera to say

that he cannot remember simple facts.” Even more impor-

tant to the IJ, though, was that Lin’s written statements

indicated his wife had not only a forced abortion but

8 No. 10-1401

also an involuntary sterilization; however, Lin never

mentioned the latter procedure while testifying, even

when asked if anything other than the abortion was

done to her. Lin even testified that he and his wife were

physically able to have another child. The IJ was also

troubled by the FDL report that found the abortion

and sterilization certificates suspect, but she did not

give great weight to that report or counsel’s reply

thereto. She found that the certificates did not deserve

full evidentiary weight in part because Lin failed to

provide very detailed testimony, and none about the

sterilization. In addition, the IJ noted Lin’s testimony

that he had “physical contact” with the family planning

officials, which she viewed with skepticism because

his written materials made no mention of it. Having

found Lin not credible, the IJ denied his application for

asylum and withholding of removal and ordered him

removed to China.

Lin appealed to the Board. He asserted that the IJ “gave

undue weight to the adverse FDL findings.” He also

claimed that given his second-grade education and

“brain injuries” from working at a state-owned enter-

prise in China, the IJ should have inquired into and

given weight “to such injuries as persecution.” In an

attached affidavit, Lin added that he had worked in a

factory where he was exposed to mercury sprayed on

thermos bottles and that both his parents died from

cancer after having worked at the factory “all their lives.”

On January 25, 2010, the Board summarily affirmed the

IJ’s decision. The Board noted that in a July 28, 2009,

No. 10-1401 9

decision it had suspended Lin’s former counsel Li Nan

Chang from practicing before the Board, the immigration

courts, and the DHS. Because Lin had retained new

counsel who filed the appeal and appellate brief, the

Board proceeded to decide the appeal. Lin petitioned for

review with this court.

II. ANALYSIS

Lin raises several arguments on appeal. He first argues

that the IJ erred in placing insufficient weight on the

certificates of his wife’s abortion and sterilization proce-

dures based on perceived deficiencies and lack of detail

in his testimony. He claims that his documentation

“should have served the REAL ID purpose of cor-

roborating otherwise incredible testimony.” He argues

that the IJ erred in failing to probe into his background

and alleged exposure to harmful chemicals and that the

Board erred in not addressing this alleged explanation

for the inconsistencies in his testimony. He also asserts

that the IJ and Board erred in failing to recognize the

ineffective assistance of his counsel. Finally, he claims

that the IJ erred in failing to determine whether he was

competent to testify.

Where, as here, the Board summarily affirms, we

review the IJ’s decision. Juarez v. Holder, 599 F.3d

560, 564 (7th Cir. 2010). Our review is deferential and we

“ask only whether [the decision] is supported by ‘reason-

able, substantial, and probative evidence on the record

considered as a whole.’ ” Lin v. Holder, 620 F.3d 807, 810

(7th Cir. 2010) (quoting Toptchev v. I.N.S., 295 F.3d 714, 720

10 No. 10-1401

(7th Cir. 2002)). We “will reverse only if the evidence

compels a contrary conclusion.” Surganova v. Holder, 612

F.3d 901, 904 (7th Cir. 2010).

In order to establish eligibility for asylum and with-

holding of removal, Lin bears the burden of proving

that he is a “refugee” within the meaning of 8 U.S.C.

§ 1101(a)(42)(A). 8 U.S.C. § 1158(b)(1)(B)(i); Lin, 620 F.3d

at 810. Thus, he had to show past persecution or a well-

founded fear of persecution on account of his race,

religion, nationality, membership in a protected social

group, or political opinion. 8 U.S.C. § 1101(a)(42)(A). He

alleges persecution based on China’s coercive family

planning polices and alleged practices committed against

his wife, on account of his political opinion. Lin may

prove that he is a refugee based on his own testimony

alone if the IJ finds it is credible. 8 U.S.C. § 1158(b)(1)(B)(ii).

However, as the IJ recognized, “[g]iven the importance

of the applicant’s credibility in asylum proceedings, ‘an

adverse credibility finding will doom the applicant’s

claimed eligibility as a ‘refugee.’ ” Hassan v. Holder, 571

F.3d 631, 637 (7th Cir. 2009) (quoting Musollari v. Mukasey,

545 F.3d 505, 508-09 (7th Cir. 2008)).

Before we evaluate the adverse credibility determina-

tion, we need to address some of the government’s argu-

ments. The government first argues that we may not

consider Lin’s unexhausted claims that: (1) his counsel

was ineffective; (2) the IJ should not have proceeded

with the hearing because of counsel’s ineffective assis-

tance; (3) the IJ should have determined Lin’s competency

to testify; (4) the IJ erred in its findings regarding Lin’s

No. 10-1401 11

belated claim of physical contact; (5) the FDL report’s

suspicions of the sterilization certificate were baseless;

and (6) the weight given to the abortion and steriliza-

tion certificates contradicted the purpose of the REAL ID

Act—allegedly to corroborate otherwise incredible testi-

mony. See 8 U.S.C. § 1252(d)(1) (“A court may review a

final order of removal only if the alien has exhausted

all administrative remedies available to the alien as of

right.”); Muratoski v. Holder, 622 F.3d 824, 830-31 (7th Cir.

2010) (denying petition for review where alien failed

to exhaust administrative remedies). “ ‘The duty to

exhaust includes the obligation to first present to the

[Board] any argument against the removal order as

to which the Board is empowered to grant the alien

meaningful relief.’ ” Muratoski, 622 F.3d at 830 (quoting

Ghaffar v. Mukasey, 551 F.3d 651, 654 (7th Cir. 2008)).

Lin’s failure to exhaust the claims identified above pre-

vents us from reviewing them.2

The government contends that the exhaustion require-

ment is jurisdictional. We have said that it is not. See,

e.g., Issaq v. Holder, 617 F.3d 962, 968 (7th Cir. 2010)

2

The failure to exhaust may be excused when an alien raises

a constitutional claim that the Board “would [have been]

powerless to address,” but such failure is not excused when

the claim is “based on procedural failings that the [Board]”

could have remedied. Pjetri v. Gonzales, 468 F.3d 478, 481 (7th

Cir. 2006). Lin’s due process claims are the type of claims that

the Board could have addressed—the Board could have re-

manded the case to the IJ for another hearing; thus, the excep-

tion does not apply.

12 No. 10-1401

(failure to exhaust “is not . . . a jurisdictional rule in the

strict sense . . . [but] a case-processing rule that limits

the arguments available to an alien in this court”).

The government next argues that Lin has waived several

challenges to the IJ’s decision, including most of the

reasons for the adverse credibility finding as well as his

claim that the weight given to the alleged abortion and

sterilization certificates contradicts the purpose of the

REAL ID Act. The “statement of facts and procedural his-

tory” section of Lin’s opening brief mentions the fol-

lowing reasons supporting the IJ’s credibility determina-

tion: (1) Lin was unable to provide a plausible explana-

tion as to how the neighborhood committee mem-

bers determined that his wife was pregnant; (2) Lin’s

written statements indicated his wife was forced to

undergo sterilization, but Lin never mentioned it

when testifying; and (3) Lin first claimed that he had

“physical contact” with the family planning officials

when testifying. But the brief only mentions these in

passing. Merely mentioning that the IJ made these

findings without advancing any argument supported by

citations to relevant authority is insufficient to challenge

those findings on appeal. See, e.g., Haxhiu v. Mukasey,

519 F.3d 685, 691 (7th Cir. 2008) (“Federal Rule of

Appellate Procedure 28 requires an argument consisting

of more than a generalized assertion of error, with cita-

tions to supporting authority.”) (quotations and citations

omitted); Asere v. Gonzales, 439 F.3d 378, 381 (7th Cir.

2006). Lin has not made any cogent argument to chal-

lenge these reasons for the adverse credibility finding.

Thus, he has waived any challenge to them. But even if

No. 10-1401 13

he had not waived these challenges, we would not

disturb the IJ’s credibility finding for the reasons we

discuss later.

Lin has waived other arguments too. He claims that

the abortion and sterilization certificates he submitted

“should have served the REAL ID Act’s purpose of cor-

roborating otherwise incredible testimony” and that the

IJ’s decision to give them less weight because of the

inconsistencies in his testimony contravenes the purpose

of the Act. But he offers no authority to support

these arguments. The failure to adequately develop and

support these arguments results in waiver. See Jin v.

Holder, 572 F.3d 392, 397 (7th Cir. 2009); Asere, 439 F.3d

at 381 (citing Ajayi v. Aramark Bus. Servs., 336 F.3d 520,

529 (7th Cir. 2003) (“It is not enough for [plaintiff] merely

to refer generally to these actions in her statement of

facts; . . . she must identify the legal issue, raise it in

the argument section of her brief, and support her argu-

ment with pertinent authority.”). In any event, “under the

REAL ID Act, corroborating evidence may be required

even if the applicant is credible.” Rapheal v. Mukasey,

533 F.3d 521, 527 (7th Cir. 2008) (citing 8 U.S.C.

§ 1158(b)(1)(B)(ii)).

Turning to the IJ’s adverse credibility determination,

Lin’s only argument is that the IJ placed insufficient

weight on the abortion and sterilization certificates. Yet

the IJ was entitled to give them whatever weight she

thought they deserved in light of all the evidence. See

Weng v. Holder, 593 F.3d 66, 72 & n.5 (1st Cir. 2010) (con-

cluding that documentary evidence did not compel a

14 No. 10-1401

finding of persecution “especially in the absence of

credible testimony on [the alien’s] part”); Feto v. Gonzales,

433 F.3d 907, 911 (7th Cir. 2006) (stating that the IJ

was entitled to weigh documentary evidence along with

other evidence in the case). The IJ reasoned that the

certificates were “not entitled to full evidentiary

weight” because Lin “did not provide very detailed testi-

mony,” particularly with respect to his wife’s steriliza-

tion. A lack of detail is a “major clue” that someone is

lying. Mitondo v. Mukasey, 523 F.3d 784, 788-89 (7th Cir.

2008). Indeed, Lin did not provide much detail about his

wife’s abortion, sterilization, or the events surrounding

these procedures. Even if the certificates should have

been given more weight, they contain nothing to

suggest that these procedures were forced upon Lin’s

wife. We find no reason to disturb the IJ’s weighing of

the certificates.

And in the end, even Lin acknowledges the discrepancies

and inconsistencies in his testimony and supporting

documents. Indeed, he notes the existence of a “remark-

able number of inconsistencies” in his testimony. Yet

he offers no argument why such unexplained discrep-

ancies could not support the IJ’s adverse credibility

determination. Any such argument is therefore waived.

Jin, 572 F.3d at 397 & n.3. (He attempts to offer an ex-

planation, but that effort fails, as we address later.)

Besides, an IJ may properly base a credibility determina-

tion on “the consistency between the applicant’s . . .

written and oral statements . . . [and] the internal con-

sistency of each such statement . . . .” 8 U.S.C.

§ 1158(b)(1)(B)(iii); see, e.g., Hassan, 571 F.3d at 637 (“[T]he

No. 10-1401 15

IJ may rely on inconsistencies between the applicant’s

hearing testimony and earlier statements.”). Further, the

addition of factual assertions in an applicant’s testi-

mony that were not included in the written asylum ap-

plication can support an adverse credibility finding.

Hassan, 571 F.3d at 638-39 (deferring to adverse credi-

bility determination where alien testified about four

events of persecution but omitted them from his

written application); Xiao v. Mukasey, 547 F.3d 712, 717

(7th Cir. 2008) (upholding adverse credibility finding

where alien failed to disclose the abortion during her

airport interview and credible fear interview); Song Wang

v. Keisler, 505 F.3d 615, 621 (7th Cir. 2007) (upholding

adverse credibility determination where alien based

his asylum application on his wife’s sterilization and

omitted mention of a forced abortion and of a fight that

occurred at the hospital before his wife had an abortion).

Lin not only gave inconsistent dates for his wife’s

abortion but also omitted any mention of her steriliza-

tion during his testimony. The IJ reasonably could

have expected that Lin would testify about events that

go to the heart of his claim. See Song Wang, 505 F.3d at

621. He even contradicted his claim by testifying that

she was physically capable of having children. In addi-

tion, Lin’s claim of physical contact with the family

planning officials first surfaced during his testimony.

Further, Lin was unable to provide significant details

about the abortion, sterilization, and the physical con-

tact at the neighborhood committee office. He failed

to offer an adequate and consistent explanation as to

how the family planning officials knew his wife was

16 No. 10-1401

pregnant, and he had no explanation for the brief stop

at the neighborhood office. These were just some of the

inconsistencies; there were more. Lin bore the burden

of explaining to the IJ’s satisfaction the inconsistencies

in his testimony and documents—some of which go to

the heart of his claim. See Fedosseeva v. Gonzales, 492

F.3d 840, 846 (7th Cir. 2007). He did not do so. Even Lin

acknowledges that “a single inconsistency going to the

heart of an asylum claim may be grounds for an adverse

credibility determination.” (Br. 16 citing Huang v. Gonzales,

453 F.3d 942, 945-46 (7th Cir. 2006)). Lin has given us

no reason to disturb the IJ’s adverse credibility finding.

Lin argues that he did not have an opportunity for a

full and fair hearing. He submits that the IJ should have

probed into his background and exposure to harmful

chemicals, which he claims “wreaked havoc on [his]

cognitive abilities.” He complains that the Board did not

address this explanation for his inconsistent testimony.

He also claims that the IJ should not have proceeded

with the hearing given counsel’s alleged obvious inef-

fectiveness.

Due process requires that an alien be afforded a mean-

ingful opportunity to present a claim, Barradas v. Holder,

582 F.3d 754, 767 (7th Cir. 2009); Capric v. Ashcroft, 355

F.3d 1075, 1088-89 (7th Cir. 2004) (emphasizing it is the

opportunity to present a claim that is protected), but

“imposes no obligation to ensure that the alien actually

makes a meaningful presentation,” Capric, 355 F.3d 1089.

We examine “whether, given the totality of the circum-

stances, [the alien] had a full and fair opportunity to put

No. 10-1401 17

on his case.” Barradas, 582 F.3d at 767. Lin had such an

opportunity. The record does not suggest that the IJ

interfered with Lin’s ability to present his claim. Lin

could have testified about his claimed exposure to

harmful chemicals, but he omitted any mention of this

in his testimony and asylum application. Because he

never brought this matter to the IJ’s attention, the IJ had

no reason to suspect that an alleged chemical exposure

caused Lin’s inability to remember simple details.

There certainly is no basis for concluding that Lin’s testi-

mony that he worked ten years in a factory manu-

facturing thermos bottles should have been a clue to the

IJ that he was exposed to harmful chemicals or that

those chemicals caused a brain injury which affected

his ability to testify truthfully or accurately. And ab-

sent notice of Lin’s alleged exposure to harmful chem-

icals, there was no reason for the IJ to inquire further

into the matter.

Lin also had the opportunity to explain the inconsis-

tencies in his testimony to the Board. But the Board is not

permitted to engage in fact-finding on appeal. See Figueras

v. Holder, 574 F.3d 434, 437 (7th Cir. 2009); 8 C.F.R.

§ 1003.1(d)(3)(iv). Lin did not move to remand to the IJ

or reopen the proceedings for consideration of evidence

of his background and exposure to harmful chemicals.

Thus, the Board did not err in declining to address

Lin’s proffered explanation for the inconsistencies in

his testimony.

Regarding whether the IJ should have proceeded with

the hearing given the “obvious” ineffective assistance

of Lin’s counsel, Lin did not exhaust this claim. That

18 No. 10-1401

barrier aside, Lin still could not prevail. He argues that

his case is like Gjeci v. Gonzales, 451 F.3d 416, 424 (7th Cir.

2006), where we concluded that by proceeding with

the merits hearing, the IJ deprived the alien of a funda-

mentally fair hearing. But that case is distinguishable:

Gjeci’s counsel withdrew; the IJ refused to grant a con-

tinuance to allow Gjeci to obtain new counsel; Gjeci’s

counsel retained documents central to Gjeci’s claim; and

Gjeci did not fully comprehend the consequences of

his counsel’s withdrawal. Id. at 421-24. Furthermore, the

record demonstrated prejudice—the IJ placed great

weight on the evidence that the documents had been

falsified and said he would have been inclined to grant

Gjeci’s petition if the documents were authentic. Id. at

420, 423. Here, Lin was represented by counsel during

the proceedings; the IJ granted him a continuance to

allow a response to the FDL findings and his counsel

submitted a response; and the IJ did not place great

weight on the findings.

Lin further claims that it was highly unlikely that

his counsel was capable of providing anything other

than incompetent representation at the time of the IJ’s

hearing. He first contends that the lack of compliance

with the re-fingerprinting order was his counsel’s fault.

The IJ noted that she did not serve written instructions

about the re-fingerprinting. Anyway, she did not deem

Lin’s claim abandoned, but allowed Lin and his counsel

to proceed. Thus, the belated fingerprinting did not

prejudice Lin.

Second, Lin argues that counsel could not produce

any explanation for the “gross . . . discrepancies” in his

No. 10-1401 19

testimony, presumably a reference to counsel’s failure to

raise the alleged brain injury claim. But Lin wholly fails

to substantiate his claim that the alleged exposure to

mercury could have caused the gross discrepancies in

his testimony. He does not, for example, offer any

expert evidence that exposure to mercury such as Lin

had—whatever that may have been; we don’t know

because he has offered no evidence of it—could cause

someone to forget simple details. So even now Lin

has not substantiated his claim that his work at the

thermal bottling plant and claimed exposure to

mercury “explains” the substantial inconsistencies in

his testimony. Thus, it is far from clear that counsel’s

failure to produce evidence of this alleged explanation

for the gross testimonial discrepancies would amount

to ineffective assistance.

Another area of ineffectiveness, Lin alleges, was coun-

sel’s waiver of closing argument. But Lin has not shown

any prejudice resulted from the lack of argument. In

addition, Lin argues that the timing of events leading

to the disciplinary action against Chiang substantiates

his claim of ineffective assistance. According to Lin,

“[t]he ARDC [the Illinois Attorney Registration and

Disciplinary Commission] found him incompetent in

handling cases before April of 2008,” which was when

the IJ held the hearing in this case. Yet Lin has offered

no evidence to substantiate this claim. We do know that

on July 28, 2009, the Board suspended Chiang from prac-

ticing before the Board, the immigration courts, and

DHS pursuant to 8 C.F.R. § 1003.103(a). But representa-

tion by counsel whose license has been suspended

does not automatically render that assistance per se

20 No. 10-1401

ineffective. See United States v. Williams, 934 F.2d 847, 851-

52 (7th Cir. 1991). The fact that Chiang may have

been ineffective in other matters does not direct the

conclusion that he was ineffective here. Instead, Lin

would have to show that an error or omission by

Chiang prejudiced his case. He has not done so.

Moreover, the IJ cited a host of reasons for finding Lin

not credible. The record shows that Lin had a full and

fair opportunity to present his claim.

Finally, Lin argues that the IJ should have determined

whether he was competent to testify. He asserts that

his very limited education and alleged brain injuries

affected his cognitive abilities and competence to testify,

not his credibility. The failure to exhaust aside, Lin

could not prevail on this argument. When an alien

raises the issue of his competency with the IJ, the IJ gen-

erally is not expected to sua sponte initiate a competency

evaluation. See, e.g., Munoz-Monsalve v. Mukasey, 551

F.3d 1, 6 (1st Cir. 2008). Lin was represented by counsel

at the hearing before the IJ; counsel could have raised

the issue of Lin’s competency, but did not. Furthermore,

although Lin gave inconsistent answers and was unable

to recall details of key events, there is nothing to sug-

gest that this was due to a lack of competency rather

than, as the IJ found, a lack of credibility.

III. CONCLUSION

For the foregoing reasons, the petition for review is

D ENIED.

12-23-10