Lin-Jian v. Gonzales

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CHEN LIN-JIAN, a/k/a Jian Cheng 

Lin,

Petitioner,

v.  No. 05-1693

ALBERTO R. GONZALES, Attorney

General,

Respondent.



On Petition for Review of an Order

of the Board of Immigration Appeals.

(A96-192-840)

Argued: October 27, 2006

Decided: May 30, 2007

Before NIEMEYER, TRAXLER, and SHEDD, Circuit Judges.

Petition granted in part and denied in part by published opinion. Judge

Traxler wrote the majority opinion. Judge Niemeyer wrote an opinion

concurring in part and dissenting in part. Judge Shedd wrote an opin-

ion concurring in part and dissenting in part.

COUNSEL

ARGUED: Yee Ling Poon, New York, New York, for Petitioner.

Lauren A. Wetzler, Assistant United States Attorney, OFFICE OF

THE UNITED STATES ATTORNEY, Alexandria, Virginia, for

Respondent. ON BRIEF: Robert Duk-Hwan Kim, New York, New

2 LIN-JIAN v. GONZALES

York, for Petitioner. Paul J. McNulty, United States Attorney, Alex-

andria, Virginia, for Respondent.

OPINION

TRAXLER, Circuit Judge:

Chen Lin-Jian, a native of the People’s Republic of China, claims

that he fled to the United States in order to escape China’s "one cou-

ple, one child" policy. Lin concedes that he is removable for being

present without having been admitted or paroled into the United

States, see 8 U.S.C. § 1182(a)(6)(A)(i), but seeks relief from removal

via political asylum, withholding of removal, and protection under the

Convention Against Torture ("CAT"). The Immigration Judge denied

Lin’s application for all three forms of relief and the Board of Immi-

gration Appeals ("BIA") summarily affirmed this denial.

Lin petitions this court for review of the BIA’s decision. We grant

the petition for review as to Lin’s claims for asylum and withholding

of removal and remand these claims for further evaluation. However,

we deny Lin’s petition for review of the BIA’s denial of relief under

the CAT.

I.

A.

Lin and his wife, who remains in China, are from a rural area near

Changle City in China’s Fujian Province. According to Lin, the cou-

ple married in 1993 and they have two children who also remain in

China. Their first child, a daughter, was born in April 1994, and the

second child, a son, was born in August 1995. For proof of his two

children, Lin submitted Notarial Birth Certificates that include pic-

tures of the children, provide their birthdates and birthplaces, and

identify Lin and his wife as the parents. The certificates were issued

in May 2003 by the Changle City Notary Public Office. Lin also sub-

mitted the children’s Permanent Resident Registration Cards which

include their birthdates and note their relationship to Lin; a Changle

LIN-JIAN v. GONZALES 3

City family-planning check-up card indicating that Lin and his wife

have a male child born in August 1995 and a female child born in

April 1994; and a family photo.

Lin claims that, after the birth of his daughter, family-planning

officials indicated the couple would be required to wait five years

before they could have a second child and directed them to use con-

traceptive measures. At his asylum hearing, Lin testified that in his

area of the Fujian province, couples are allowed two children, five

years apart. Lin’s assertions were consistent with the State Depart-

ment’s 1998 profile of conditions in China submitted by Lin. Accord-

ing to the report, officials in both urban and rural areas of the Fujian

province did not follow a strict one-child policy, often permitting a

second child if the first is female and the parents wait for a given

number of years between children. See Report of U.S. Dept. of State,

China: Profile of Asylum Claims and Country Conditions, at 20

(April 14, 1998) ("1998 Report").

Despite the order that they wait five years, Lin claims that his wife

gave birth to their son sixteen months later. Lin testified that family-

planning officials did not immediately discover the unauthorized

birth; rather, they became aware of Lin’s second child the following

year in December 1996 when Lin’s parents went to file a household

registration for Lin’s son. Lin testified that the government imposed

a fine of 10,000 RMB, which Lin testified was the equivalent of

$1,000 at the time. Lin paid the fine and submitted a receipt evidenc-

ing payment of the fine on December 15, 1996, for "violation of [the]

birth interval." J.A. 227.

According to Lin’s affidavit, family-planning officials also ordered

that Lin’s wife be sterilized. Lin claims "one of our relatives with

connection[s] to the cadres" persuaded them "not to sterilize us" but

to use an "IUD instead." J.A. 179. In support, Lin submitted a docu-

ment entitled "Changle City Certificate of Family Planning Opera-

tion," which indicates that Lin’s wife underwent an IUD insertion

procedure on December 16, 1996. Lin also notes that his wife was

directed to submit to regular gynecological exams as reflected by the

pregnancy check-up cards he offered into evidence. This document

lists these official pregnancy check-up visits from January 1997 to

September 2001, each of which is initialed by the "Cadre-in-charge"

4 LIN-JIAN v. GONZALES

and a doctor. Notations for the final visit indicate that the IUD was

still in place and Lin’s wife was not pregnant at the time.

According to Lin’s affidavit, he and his wife hired a private doctor

in December 2001 to remove the IUD, and, in April 2002, Lin’s wife

again became pregnant. Lin’s affidavit asserted that his wife hid from

family-planning officials at her parents’ house in LuBei village,

which is part of Changle City. Lin claims this move was unsuccessful,

however, as officials appeared at his mother-in-law’s house on

August 21, 2002, and "forcibly took [Lin’s] wife to Changle City

Hospital where she was involuntarily aborted on that day." J.A. 179.

Lin testified that at the time the political cadre took Lin’s wife for an

abortion, he was away in Fuzhou City where he worked in construc-

tion. Lin learned about the abortion when his mother-in-law called

him that morning; Lin says he did not see his wife until 10:00 p.m.

After the abortion was performed, family-planning officials indi-

cated that Lin’s wife would be required to undergo sterilization. Lin

claims that this threat caused them to flee Changle City the day after

the abortion to hide in the home of Lin’s uncle in Fuzhou City —

which is also in the Fujian Province — leaving their children in the

care of Lin’s parents in Changle City. At the hearing, Lin testified that

his parents brought the children to visit his wife, but Lin did not indi-

cate whether they came to visit more than once. To corroborate his

testimony, Lin produced, in addition to the evidence already men-

tioned, a declaration from his wife which was signed but not nota-

rized. The declaration was consistent with Lin’s testimony in all

major respects.

In December 2002, approximately four months after Lin and his

wife relocated to Fuzhou City, Lin fled China, leaving his wife at his

uncle’s house in the hope that, "if the cadres found [her], they might

not sterilize her since I [am] no longer in China." J.A. 180. Lin testi-

fied that he fears returning to China because he believes that he will

be forcibly sterilized.

During cross-examination, Lin acknowledged that he left China

with the help of a so-called "snakehead" who procured for Lin a Chi-

nese passport bearing Lin’s picture but a false name.1 Lin indicated

1

"Snakeheads" are professional smugglers of Chinese migrants. See

generally Silva-Rengifo v. Att’y Gen. of the United States, 473 F.3d 58,

65 (3d Cir. 2007).

LIN-JIAN v. GONZALES 5

that he used his own identification card to board a plane from Changle

City to Hong Kong. In Hong Kong, however, Lin was forced to use

the false passport to board an international flight to Mexico and then

to the United States, for which the snakehead had procured visas.

(J.A. 109) Lin testified that he agreed to pay the snakehead $10,000,

which he borrowed from relatives and friends. He admitted working

illegally in the United States in order to repay this debt.

B.

In an oral decision, the immigration judge (IJ) concluded that

"[b]ased on the totality of the evidence," Lin-Jian failed to establish

past persecution or a well-founded fear of future persecution and,

therefore, was ineligible for asylum. J.A. 47. In explaining her con-

clusion, the IJ felt certain aspects of Lin’s testimony were implausi-

ble, undercutting Lin’s assertion that he feared persecution. For

example, the IJ questioned whether someone who feared being dis-

covered by the authorities to the point that he went into hiding with

his wife, as Lin claimed, would continue to report for work at a con-

struction site. The IJ also dismissed Lin’s testimony that he was

forced to work in order to support his family, reasoning that if Lin

"was able to borrow $10,000 U.S. dollars from relatives to pay a

snakehead" then "he could have borrowed money from relatives while

he remained in hiding." J.A. 48. Additionally, the IJ found it unlikely

that a couple in hiding from family planning cadre would permit their

children to be brought to the hiding place on a regular basis to visit.

The IJ concluded that Lin’s testimony regarding the circumstances

of his departure from China likewise undermined Lin’s claim of a

well-founded fear of persecution. The IJ noted that, had Lin truly

been fearful of sterilization, he would not have presented his own

identification card when boarding the plane in Changle City but

"would have made arrangements with the snakehead for an alternate

way of leaving the country." J.A. 49.

The IJ suggested that the documents submitted by Lin to prove the

existence of his two children were lacking. Citing Matter of Ma, 20

I & N Dec. 394 (BIA 1991), the IJ noted that when notarial birth cer-

tificates are "issued a period of time after the subject’s birth . . . any

and all supporting evidence should accompany such certificates as

6 LIN-JIAN v. GONZALES

evidence of the claimed relationship." J.A. 48. The IJ considered the

Permanent Resident Registration Cards which set forth the children’s

dates of birth and relationship with Lin but found them "not of great

assistance" because Lin’s registration listed his occupation in 2001 as

that of farmer, not construction worker as Lin had testified. J.A. 61.

Finally, the IJ observed that none of the government documents

submitted by Lin had been authenticated and that the letter purport-

edly from Lin’s wife had not been notarized. It is unclear whether the

IJ refused on this basis to consider these documents at all or whether

the IJ merely accorded the documents little weight.

Thus, the IJ denied Lin’s application for asylum and, in view of

Lin’s failure to establish eligibility for asylum, denied Lin’s applica-

tion for withholding of removal under its more demanding "clear

probability" standard. The IJ denied relief under the CAT as well,

finding that Lin failed to meet his burden of proof for the same rea-

sons that he failed to establish eligibility for asylum and withholding

of removal. On appeal, the BIA summarily affirmed. Thus, the IJ’s

decision serves as the final agency determination and we review it as

if it were the BIA’s decision. See 8 C.F.R. § 1003.1(e)(4).

II.

A.

In order to be eligible for asylum, Lin must establish "refugee" sta-

tus under the INA. The Attorney General has the discretion to grant

asylum to an alien who successfully demonstrates that he qualifies as

a refugee. See 8 U.S.C. § 1158(b). A "refugee" is an individual "who

is unable or unwilling to return to" his native country "because of per-

secution or a well-founded fear of persecution on account of race,

religion, nationality, membership in a particular social group, or polit-

ical opinion." 8 U.S.C. § 1101(a)(42)(A).

An alien "may qualify as a refugee either because he or she has suf-

fered past persecution or because he or she has a well-founded fear

of future persecution." 8 C.F.R. § 1208.13(b) (emphasis added). An

asylum applicant who establishes past persecution on account of a

LIN-JIAN v. GONZALES 7

protected ground is entitled to a presumption that he or she has a well-

founded fear of persecution on that same ground. See 8 C.F.R.

§ 1208.13(b)(1); see also Camara v. Ashcroft, 378 F.3d 361, 367 (4th

Cir. 2004) ("If the applicant establishes that she has suffered past per-

secution, a presumption arises that she has the requisite level of fear

of persecution."). The government may rebut this presumption if it

establishes, by a preponderance of the evidence, that "[t]here has been

a fundamental change in circumstances such that the applicant no lon-

ger has a well-founded fear of persecution" in his native country or

that "[t]he applicant could avoid future persecution by relocating to

another part of the applicant’s country" and it was reasonable to do

so. 8 C.F.R. § 1208.13(b)(1)(i)(A)-(B); see 8 C.F.R. § 1208.13(b)(ii).

If the applicant is unable to establish a claim based on past persecu-

tion, he or she must demonstrate a well-founded fear of persecution

which has both subjective and objective components, meaning "that

the applicant is subjectively afraid and that the fear is objectively well-

founded." Camara, 378 F.3d at 367. A claim based on past persecu-

tion, however, does not require the applicant to show he or she sub-

jectively fears persecution in the country of origin. See id. at 369-70

("In cases where the applicant can prove actual past persecution . . .

she need not prove the subjective component of well-founded fear."

(internal quotation marks omitted)).

Congress specifically included within the definition of "refugee"

persons "forced to undergo an involuntary sterilization or abortion,"

persons "persecuted for refusing to undergo such a procedure or for

other resistance to a coercive population control program," and per-

sons with "a well-founded fear of being subjected to [a forced abor-

tion or sterilization, or persecuted for resistance to] a coercive

population control program." Chen v. INS, 195 F.3d 198, 202 (4th Cir.

1999); see 8 U.S.C. § 1101(a)(42). See also Li v. Gonzales, 405 F.3d

171, 176 (4th Cir. 2005) (explaining that Congress amended the defi-

nition of "refugee" in order to change previous court and BIA rulings

holding "that victims of China’s ‘one child’ policy had not been per-

secuted on a protected basis, and had been denied asylum requests

based on this ground").

The BIA interprets this provision to cover the spouse of a person

subjected to a forced abortion or sterilization, see In re C-Y-Z, 21 I.

& N. Dec. 915, 918 (1997), and the government does not challenge

8 LIN-JIAN v. GONZALES

this interpretation. Courts, by and large, have approved this construc-

tion as well. See Qiu v. Ashcroft, 329 F.3d 140, 151 (2d Cir. 2003);

He v. Ashcroft, 328 F.3d 593, 603-04 (9th Cir. 2003); Cao v. Gon-

zales, 442 F.3d 657, 660 (8th Cir. 2006). Thus, Lin may establish eli-

gibility for asylum or withholding of removal by demonstrating that

his wife was forced to undergo an abortion or that he himself has a

well-founded fear of sterilization or other persecution if he returns to

China.

B.

Lin contends that in rejecting the application for asylum and with-

holding of removal, the IJ relied on an adverse credibility determina-

tion that is not supported by substantial evidence. Moreover, Lin

asserts that the IJ did not discredit his testimony regarding his wife’s

forced abortion and failed to consider other evidence of past persecu-

tion.

1.

Lin bears the burden of proving his refugee status. See 8 C.F.R.

§ 208.13(a). "The testimony of the [asylum] applicant, if credible,

may be sufficient to sustain the burden of proof without corrobora-

tion." 8 C.F.R. § 208.13(a). We must affirm the agency’s decision as

long as it is not "manifestly contrary to the law." 8 U.S.C.

§ 1252(b)(4); see Tewabe v. Gonzales, 446 F.3d 533, 538 (4th Cir.

2006). We defer to the agency’s "credibility findings that are sup-

ported by substantial evidence." Camara, 378 F.3d at 367. If the IJ

rejects the testimony of an asylum applicant on credibility grounds,

however, he "should offer a specific, cogent reason for his disbelief."

Id. (internal quotation marks omitted). "‘Inconsistent statements, con-

tradictory evidence, and inherently improbable testimony’" are exam-

ples of cogent reasons that could support an adverse credibility

finding. Tewabe, 446 F.3d at 538 (quoting In re S-M-J-, 21 I. & N.

Dec. 722, 729 (BIA 1997) (en banc). By contrast, we will not defer

to an adverse credibility finding that is "based on speculation, conjec-

ture, or an otherwise unsupported personal opinion." Id. (internal quo-

tation marks omitted).

In her oral decision, the IJ concluded that Lin’s testimony was not

credible to the extent he claimed that, following his wife’s abortion,

LIN-JIAN v. GONZALES 9

the couple went into hiding to avoid being forcibly sterilized by gov-

ernment family planning officials. Specifically, the IJ found Lin’s tes-

timony that he departed from Changle City by presenting his own

identification card to government officials inconsistent with someone

who was in hiding for fear of being discovered by family planning

officials: "[I]f the respondent were so fearful, it seems logical to this

Court that he would have made arrangements with the snakehead for

an alternate way of leaving the country." J.A. 49.

Lin argues that this finding rests upon speculation, as there was no

evidence that airport officials have access to the identities of, or are

tasked with identifying or apprehending, Chinese nationals whom

family planning officials intend to sterilize. We agree with Lin that

this particular basis for rejecting Lin’s testimony rests upon an unsup-

ported implicit assumption that airport officials are equipped to iden-

tify citizens sought by family planning cadre. Cf. Cao He Lin v.

United States Dep’t of Justice, 428 F.3d 391, 405 (2d Cir. 2005)

(explaining that adverse credibility finding as to applicant’s forced

abortion claim was too speculative where it was based on applicant’s

failure to produce a written abortion notice but there was no evidence

suggesting that forced abortions were usually triggered by written

notice).

The IJ, however, also found that Lin’s testimony lacked credibility

because it was inconsistent with his affidavit filed in support of his

asylum application. The affidavit indicated that after his wife’s forced

abortion, "the cadres ordered one of us to undergo sterilization. We

did not want to be sterilized . . . We went to hide in my uncle’s house

in Fuzhou City." J.A. 180. During the hearing, Lin confirmed that his

wife went into hiding the very next day after her abortion; Lin also

indicated that he was hiding at his uncle’s house as well. However,

Lin stated that he continued to report to work. The IJ found that this

inconsistency undermined Lin’s claim of well-founded fear: "If [Lin]

were in fear of being sterilized, as he so claims, then he would not

go in and out of hiding." J.A. 60.

Lin argues that the IJ misconstrued this testimony. Lin testified that

"sometimes, I was hiding in my uncle’s house. Sometimes I went to

work in the construction . . . workplace." J.A. 116. The IJ concluded

that if Lin truly feared that the government would find him and forci-

10 LIN-JIAN v. GONZALES

bly sterilize him, he would not risk going "in and out" of hiding. Lin

argues that he did not believe that he was "coming out" of hiding by

reporting to work and that the IJ missed the clear meaning of this tes-

timony — that Lin continued to work while he was hiding at his

uncle’s house. Lin points out that this was consistent with his behav-

ior prior to his wife’s abortion, i.e., Lin went to work in Fazhou City

while his wife was hiding at her parents’ home in Changle City.

Although Lin’s preferred interpretation of the testimony is viable, it

is not the only plausible option and we are not compelled to conclude

that the IJ misconstrued Lin’s testimony with respect to his fear of

future persecution. See 8 U.S.C. § 1252(b)(4)(B); cf. Xiao Ji Chen v.

United States Dep’t of Justice, 471 F.3d 315, 336 n.16 (2d. Cir. 2006)

(affirming IJ’s rejection of petitioner’s claim that she continued to

work after going into hiding from Chinese officials because "‘[t]he

purpose of going into . . . hiding is to avoid the officials,’ and yet peti-

tioner’s workplace was ‘the very first place’ those officials would

have searched for petitioner ‘other than her home’"); Chen v. United

States Atty. Gen., 463 F.3d 1228, 1232 (11th Cir. 2006) (finding that

IJ provided specific and cogent reason for rejecting applicant’s claim

that he feared arrest because applicant approached strangers and "told

them where he was hiding").

Lin also argues that the court relied on speculation when it rejected

his explanation for continuing to work. Lin explained that he had to

support his family, requiring him to leave his uncle’s house and report

to his construction job in Fuzhou City. The IJ observed, however, that

Lin was "able to borrow $10,000 U.S. dollars from relatives to pay

a snakehead to come to the United States. If the facts are as he so

claims, [Lin] could have borrowed money from relatives while he

remained in hiding . . . protecting himself and his wife." J.A. 60. Lin

suggests that even though he obtained $10,000 from relatives to pay

the snakehead, it does not follow that he could have borrowed the

money to support his family so that he would not have to report to

work and risk being seen. Lin claims people would not be as inclined

to lend money so that he could support his family without having to

risk going to work. There is no testimony or other evidence, however,

to support Lin’s explanation. Lin testified simply that he paid the

snakehead $10,000 and that he obtained the funds from relatives. We

conclude that the IJ provided a specific and cogent reason based on

common sense for dismissing Lin’s explanation. Lin was, in fact, able

LIN-JIAN v. GONZALES 11

to obtain $10,000 which he used to pay a smuggler rather than meet

his living expenses. The IJ reasonably concluded that in view of Lin’s

ability to acquire substantial funds, he could have borrowed enough

to meet living expenses during the three month period he claimed to

be in hiding. "[T]he requirement that an IJ provide a specific and

cogent reason for an adverse credibility finding leaves ample room for

the IJ to exercise common sense in rejecting [an applicant’s] testi-

mony even if the IJ cannot point to . . . contrary evidence in the record

to refute it." Tewabe, 446 F.3d at 540 (internal quotation marks omit-

ted).

Additionally, the IJ concluded that it was "implausible that [Lin’s]

wife is in hiding in his uncle’s home in Fuzhou City, yet it appears

that his parents regularly bring their children to visit her while she is

in hiding." J.A. 61. The IJ noted that "if they are so fearful of the gov-

ernment officials discovering her hiding place, then the parents would

not be bringing the children to visit her at the place of hiding." Id. The

IJ found this testimony particularly incredible in view of Lin’s testi-

mony that government officials had previously located his wife while

she was in hiding.

Lin contends that the IJ mischaracterized his testimony that his

wife’s parents "have brought those two children to see my wife, to

visit my wife." J.A. 101-02. The IJ concluded that it was "implausi-

ble" to think that his wife’s parents would "regularly bring their chil-

dren to visit." J.A. 61 (emphasis added). Lin asserts that there is no

basis to conclude that these visits occurred on a regular basis or were

ongoing. We agree. It is clear that the grandparents brought the chil-

dren to visit their mother in Fazhou City, but Lin did not say how

often or how many times this occurred. Because the government has

pointed to nothing else in the record to support this finding, we con-

clude it is not supported by substantial evidence. It is not clear

whether the IJ would have relied on a single visit by the children,

rather than ongoing visits, as a reason for rejecting Lin’s claim that

the couple feared being discovered by the family planning officials.

In any case, we conclude that substantial evidence supports at least

two of the IJ’s reasons for rejecting Lin’s testimony that he has a

well-founded fear of sterilization, and consequently we are not "com-

pelled to conclude" that Lin’s testimony was reliable. See 8 U.S.C.

12 LIN-JIAN v. GONZALES

§ 1252(b)(4)(B); see also Tarrawally v. Ashcroft, 338 F.3d 180, 187

(3d Cir. 2003) (affirming adverse credibility finding as supported by

substantial evidence even though "[s]ome of the IJ’s reasons for his

adverse credibility determination were based on presumptions not

grounded in the record").

2.

Lin contends that even if the IJ’s adverse credibility findings are

supported by substantial evidence, we cannot sustain the denial of

asylum and withholding of removal because the IJ failed to articulate

any basis for rejecting Lin’s claim that he suffered past persecution

by virtue of his wife’s forced abortion. Rather, Lin suggests that none

of the reasons underlying the adverse credibility determination pertain

to Lin’s testimony regarding his wife’s forced abortion. Moreover,

Lin contends that the IJ did not have a sufficient basis for discounting

other independent evidence of past persecution.

We agree with Lin that the IJ did not make an adverse credibility

determination with respect to his testimony regarding his wife’s

forced abortion. To the extent that the IJ expressed skepticism and

doubt about Lin’s testimony, it was that Lin’s story did not demon-

strate a subjective fear of persecution. A determination that Lin’s tes-

timony that he feared sterilization or other punishment was not

believable does not defeat an asylum claim where there is also evi-

dence of past persecution. See Camara, 378 F.3d at 369-70 ("In cases

where the applicant can prove actual past persecution, however, a pre-

sumption arises that she has the requisite level of fear of persecution,

and thus she need not prove the subjective component of ‘well-

founded fear.’").

When an IJ is silent on the issue of credibility, it is appropriate to

presume that the applicant testified credibly. See Krotova v. Gonzales,

416 F.3d 1080, 1084 (9th Cir. 2005) ("When the BIA’s decision is

silent on the issue of credibility . . ., we may presume that the BIA

found the petitioner to be credible."); see also Toure v. Att’y Gen. of

the United States, 443 F.3d 310, 326 n.9 (3d Cir. 2006).2 Here,

2

The INA was amended through the REAL ID Act of 2005, Pub. L.

No. 109-13, § 101(a)(3)(B)(iii), 119 Stat. 302, 303 (2005), to provide

LIN-JIAN v. GONZALES 13

because none of the IJ’s credibility findings pertained to Lin’s testi-

mony about past persecution, the IJ was essentially silent. Thus, we

can presume Lin’s testimony was credible in this regard.

Lin’s testimony, standing alone, "may be sufficient to sustain the

burden of proof without corroboration." 8 C.F.R. § 208.13(a). How-

ever, even for credible testimony, corroboration may be required

when it is reasonable to expect such proof and there is no reasonable

explanation for its absence. See In re S-M-J-, 21 I. & N. Dec. 722,

Interim Decision 3303 (BIA 1997). The requirement that the applicant

provide a reasonable explanation for the lack of corroborating evi-

dence "presumes that the IJ offers a petitioner an opportunity to

explain the absence." Obale v. Att’y Gen. of the United States, 453

F.3d 151, 163 (3d Cir. 2006). The oral decision issued by the IJ stated

in conclusory fashion that Lin failed to meet his burden of proof, but

it provided no explanation as to what corroborating evidence Lin

lacked, why it was reasonable to expect such corroboration, or, for

that matter, whether corroboration was required at all for Lin’s past

persecution claim.

With respect to the IJ’s conclusion that the Household Registration

Card for Lin was of little value because it listed Lin’s occupation as

farmer rather than construction worker, Lin was afforded a chance to

explain. Lin, who lived in a rural part of the Fujian Province, testified

that he had been a farmer before he worked his construction job. He

also suggested that the local village officials altered the Household

Registration Book. Apparently, the IJ rejected this explanation; how-

ever, the IJ did not explain why a discrepancy on Lin’s individual

Household Registration Card rendered the Household Registration

Cards of the children wholly unreliable.

Moreover, there was other evidence of the children that the IJ did

not address. Lin offered the pregnancy check-up cards which included

the children’s dates of birth, a receipt reflecting that Lin paid a fine

for violating the "birth interval," and a family photo of Lin, his wife

that, in the absence of an explicit adverse credibility finding, "the appli-

cant or witness shall have a rebutable presumption of credibility on

appeal." 8 U.S.C. § 1158(b)(1)(B)(iii). This amended provision does not

apply in Lin’s case, however.

14 LIN-JIAN v. GONZALES

and the children. Although the IJ noted in passing that the government

documents offered by Lin were not authenticated, we are not able to

determine what effect, if any, the lack of authentication had on the

IJ’s decision. It is also unclear whether the IJ’s conclusion was prem-

ised solely upon Lin’s failure to comply with 8 C.F.R. § 287.6(b) or

some other basis. Consular certification pursuant to 8 C.F.R. § 287.6,

however, is not the exclusive means by which to authenticate such a

document. See e.g., Yongo v. INS, 355 F.3d 27, 31 (1st Cir. 2004).

The record contains a letter from Lin’s counsel indicating that

"[b]ased on our previous attempt at authentication, it is impossible to

have [Fujian] Chinese documents authenticated," and explaining that

‘The Foreign Affairs Office of Fujian Province DOES NOT accept

materials directly from lawyers for authentication. . . ." J.A. 319. Fur-

thermore, Lin points out that the government did not object to the

documents when they were submitted into evidence. In our view, Lin

ought to have been given an opportunity to authenticate these docu-

ments through another method if, in fact, the IJ excluded them under

8 C.F.R. § 287.6 in the first place. See Gui Cun Liu v. Ashcroft, 372

F.3d 529, 533 (3d Cir. 2004) ("Lius should have been allowed to

attempt to prove the authenticity of the abortion certificates through

other means, especially where . . . attempts to abide by the require-

ments of § 287.6 failed due to lack of cooperation from government

officials in the country of alleged persecution.").

We conclude that the denial of Lin’s claim of past persecution is

not supported by substantial evidence, and we remand for the IJ to

consider whether the testimony and other evidence establishes that

Lin suffered past persecution.

III.

Finally, Lin challenges the denial of relief under the CAT on the

basis that the IJ failed to separate analytically his CAT claim from his

asylum and withholding claims. To be eligible for relief under the

CAT, an applicant must demonstrate "that it is more likely than not

that he or she would be tortured if removed to the proposed country

of removal." 8 C.F.R. § 208.16(c)(2). He relies on Camara in which

we concluded that, because the standard for relief under the CAT is

distinct, an adverse credibility determination that defeats an asylum

claim cannot alone preclude relief under the CAT. See Camara, 378

LIN-JIAN v. GONZALES 15

F.3d at 372. The rule in Camara, of course, "assumes that the appli-

cant has presented other evidence to support her claim." 378 F.3d at

372. Lin did not submit any evidence suggesting it is more likely than

not that a Chinese national in his circumstances would be tortured

upon returning to China. Accordingly, we conclude that the denial of

relief under the CAT is supported by substantial evidence.

IV.

For the foregoing reasons, we grant the petition for review with

respect to Lin’s claim for asylum and withholding of removal based

on past persecution, and we remand for further proceedings consistent

with this opinion. We deny the petition with respect to Lin’s claim

that he established a well-founded fear of persecution. We also deny

Lin’s petition for review of the denial of his claim for relief under the

CAT.

PETITION GRANTED IN PART AND

DENIED IN PART

NIEMEYER, Circuit Judge, concurring in part and dissenting in part:

With respect to Lin’s request for asylum and withholding of

removal, I would affirm the Board of Immigration Appeals and the

Immigration Judge. Because the Board’s decision was grounded on

findings of fact and credibility determinations, we owe it substantial

deference, particularly in this area in which the Attorney General is

given broad discretion. The INA provides that the Board’s findings

of fact "are conclusive unless any reasonable adjudicator would be

compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B); see

also INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992). Moreover,

we defer to credibility findings if they are supported by substantial

evidence. See Tewabe v. Gonzales, 446 F.3d 533, 538 (4th Cir. 2006).

I cannot find on this record that the evidence "compels" findings

different from those made by the Immigration Judge. See Elias-

Zacarias, 502 U.S. at 481 n.1 ("To reverse the BIA finding, we must

find that the evidence not only supports that conclusion, but compels

it"). Under this deferential standard, we must affirm.

16 LIN-JIAN v. GONZALES

With respect to Lin’s request for relief under the Convention

Against Torture, I concur in the majority’s opinion.

SHEDD, Circuit Judge, concurring in part and dissenting in part:

I concur in parts I, II.A, and II.B.2 of Judge Traxler’s opinion,

remanding Lin-Jian’s asylum and withholding of removal claims for

further credibility determinations with respect to past persecution.

However, I believe that Lin-Jian is also entitled to a new hearing with

respect to his claims of future persecution. Thus, I dissent from parts

II.B.1 and III of the opinion.1 Accordingly, I would remand for a more

thorough examination of Lin-Jian’s claims of both past persecution

and future persecution as they relate to his requests for asylum, with-

holding of removal, and the Convention Against Torture.

In my view, the IJ’s determination that Lin-Jian "[went] in and out

of hiding" while residing at his uncle’s house fails to address Lin-

Jian’s explanation for his actions. JA 48. Lin-Jian’s testimony reveals

that he considered himself in hiding throughout the entire period he

and his wife resided with his uncle, even though he continued to

report to work. In addressing Lin-Jian’s behavior during this period,

the IJ stated, "This makes no sense to this Court. If [Lin-Jian] were

in fear of being sterilized, as he so claims, then he would not go in

and out of hiding." JA 48. Without more explanation, the conclusory

assertion that testimony "makes no sense" is not a specific, cogent

reason for discrediting it, as required by Figeroa v. INS, 886 F.2d 76,

78 (4th Cir. 1989). Further, hiding does not necessarily require that

a person never leave his home. The only evidence in the record indi-

cates that government officials did not have accurate information

regarding Lin-Jian’s true place of employment.2 The IJ offered no

1

Section II.B.1 of Judge Traxler’s opinion asserts that two out of four

credibility determinations made by the IJ with respect to future persecu-

tion are supported by substantial evidence. I believe that none of the four

credibility determinations made by the IJ with respect to future persecu-

tion are supported by substantial evidence. I address herein only the two

credibility determinations upon which Judge Traxler and I differ in opin-

ion.

2

Lin-Jian’s official household registry card stated that he worked as a

farmer in Chun Lau City, but he testified that he actually worked in con-

LIN-JIAN v. GONZALES 17

clear rationale for rejecting this evidence, merely characterizing it as

"not of great assistance in this case." JA 49. Therefore, in my view,

the IJ provided no reason, much less a specific and cogent one, for

the conclusion that Lin-Jian’s continued employment as a construc-

tion worker constituted "go[ing] in and out of hiding." JA 48.

Further, the IJ found it inconsistent that Lin-Jian claimed to con-

tinue to work to support his family yet was able to borrow $10,000

to come to the United States. The uncontested testimony reveals that

Lin-Jian was a debtor who borrowed money to flee to a country that

offered vast economic opportunities. Lin-Jian testified that he was

"trying to earn some money so [he could] have enough money to pay

back [sic]." JA 110. As Judge Traxler correctly notes, our case law

allows immigration judges to exercise common sense in evaluating

the credibility of an asylum applicant. Tewabe v. Gonzales, 446 F.3d

533, 540 (4th Cir. 2006). However, a common sense determination —

like any other credibility determination — must be based on more

than mere speculation. Id. at 538. In my view, it is totally speculative

to assert that Lin-Jian could have obtained $10,000 to avoid reporting

to work and earning a wage. Indeed, common sense dictates that a

person may be able to borrow $10,000 from individuals who expect

to be repaid, even when those same individuals would not give

$10,000 to anyone. Accordingly, I believe that this determination

made by the IJ is not supported by substantial evidence and, therefore,

is due no deference.

Thus, in light of "the ordinary ‘remand’ rule" announced in INS v.

Ventura, 537 U.S. 12, 18 (2002), I would grant Lin-Jian’s petition for

review in its entirety and remand for clarification on Lin-Jian’s credi-

bility regarding both his past persecution and his well-founded fear of

future persecution.

struction in Fuzhou City. Though the IJ expressed doubts about the help-

fulness of the household registry card, she never expressly discredited it.

Thus, the only conclusion to be drawn from the record is that the

government-issued card was authentic but inaccurate, which serves to

corroborate Lin-Jian’s claim that he was able to hide from government

officials despite his continued employment.