Lead Opinion
Petition denied by published opinion. Judge GREGORY wrote the opinion, in which Judge THACKER and Senior Judge HAMILTON joined. Judge THACKER wrote a separate concurring opinion.
Qing Hua Lin petitions this Court for review of an order of the Board of Immigration Appeals (“Board”) dismissing her appeal from the Immigration Judge’s (“IJ”) order finding that she was not eligible for asylum, withholding of removal, or deferral of removal under the Convention Against Torture (“CAT”). For the reasons stated below, we deny Lin’s petition for review.
I.
A.
Lin is a native citizen of the People’s Republic of China (“China”). She illegally entered the United States near Hidalgo, Texas on August 19, 2009. On October 6, 2009, the Department of Homeland Security commenced removal proceedings against Lin by issuing a notice to appear, charging her with removability under § 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(7)(A)(i)(I), as an alien who, at the time of application for admission to the United States, was not in possession of valid entry documents. Lin then sought relief from removal in the form of asylum, withholding of removal, and protection under the CAT. JA 535. Following several hearings, the IJ issued an order and written opinion denying Lin’s application and ordering her removed to China. JA 50-65. Lin appealed to the Board, which affirmed the decision of the IJ. Lin then timely appealed to this Court.
The disposition of this case turns primarily on discrepancies between Petitioner’s statements at different stages of the asylum process. Accordingly, we detail below the relevant testimony and materials from Lin’s interviews, hearings, and written application for asylum.
Border Patrol Interview, August 20, 2009
Lin was interviewed by a Border Patrol Agent immediately upon being apprehended entering the country (the “Border Patrol interview” or “interview”). During the interview, Lin stated that she was not married and that she had one child. JA 233. When asked what her purpose was for entering the United States, she responded “[t]o avoid population control reg
Credible Fear Hearing, September 18, 2009
By this time Lin had retained an attorney. JA 572. During the hearing, and in contrast to the Border Patrol interview, Lin stated that she was married to a man named Dehua Jiang, who continued to reside in China with their son. JA 573. Notably, she also stated that she left China because she had been forced to undergo an unwanted abortion on January 24, 2008. JA 574. This fact was not mentioned during Lin’s Border Patrol interview. Following the abortion, her husband went into hiding for fear that he would be sterilized and he encouraged Lin to seek refuge in the United States. JA 575.
Asylum Application and Supporting Documents
On April 28, 2010, Lin submitted an application for asylum and a written statement. The statement provided that Lin married Jiang on September 8, 2004. JA 246. In 2005, four months after the birth of her son, family planning officials from the Chinese government forced Lin to have an IUD implanted and submit to regular gynecological checkups. Id. The statement also discussed the 2008 forced abortion. Id.
In support of her asylum application, Lin also submitted several documents: an abortion certificate from the First Hospital of Fuzhou, a notice from Yang Zhong Village committee requesting that Lin appear for an IUD and pregnancy checkup, and a notice from Yang Zhong Village Committee notifying Lin that she had violated the family planning regulations and fining her 10,000 yuan. JA 273-80. Lin also submitted a statement from her mother-in-law, providing that Lin and her son were married in 2004. JA 285. Her mother-in-law described Lin’s forced abortion and how family planning officials continue to visit her house on a regular basis looking for Lin and her husband. JA 285. Finally, Lin submitted a statement from her husband. He provided that the two were married in September 2004 and that the marriage was “permitted and blessed.” JA 294. He also recounted the circumstances of Lin’s forced abortion and the couple’s decision that she seek refuge in the United States. JA 294-95.
State Department Report on China
The government submitted a 2007 report from the United States Department of State on China’s population control policies. JA 26-27. The report stated that the policies were no longer strictly enforced and that there have been few reports of forced abortions or sterilizations in Fujian Province over the last twenty years. Id.
First Merits Hearing, August 31, 2010
Lin gave the following testimony in support of her asylum claim before an IJ on August 31, 2010:
Lin married Jiang on September 8, 2004. JA 101. Their only child, a son, was born on March 23, 2005. JA 102. Four months after his birth, family planning officials came to her home and took
On January 24, 2008, after learning that Lin was pregnant again,
When asked by the IJ whether she was given any documentation regarding the abortion, Lin stated that originally she was not, but a few days after the procedure she returned to the hospital and requested an abortion certificate. JA 113. When asked why she requested the document, she first stated that she wanted to have “proof for the future,” and because she “assumed that America has ... human rights, and I think that certificate will be useful in the future.” JA 114. The IJ then asked her whether she was already planning to come to America, and she stated “not yet ... I just assumed that this certificate would be useful to me in the future.” JA 115. Under further questioning, Lin then changed her answer, stating that she requested the document so she could take a vacation from work. Id. When the IJ noted that Lin was self-employed, she changed her answer once again, stating that she was in fact planning on applying for asylum in the United States at the time she requested the documentation and thought it would be helpful for that purpose. JA 116-117.
Status Conference and Submission of Additional Government Evidence, November 16, 2010
The IJ held a status conference in the matter on November 16, 2010. At the hearing, the government requested that the court consider additional evidence that was part of Lin’s file but had not been discovered by the government’s attorneys until after the close of evidence. JA 175. The additional evidence consisted of the recorded notes from Lin’s September 20, 2009 Border Patrol interview. Id. Over Petitioner’s objection, the IJ decided to accept the evidence and hold a second evidentiary hearing so the parties would have an opportunity to address the new evidence. Id.
Second Merits Hearing, January 31, 2011
At the second hearing, Lin was asked why she told the Border Patrol Agent during the interview that she was not married. Lin responded, “[i]n our village, our practice is, if you did not have the, you know, banquet, if you did not have the Chinese ceremony, you really [are not] considered] married.” Id. When asked why she responded differently at the credible fear hearing, she said that her attorney had told her in the interim that “in the United States if you are registered at the court ... you are considered as married.” JA 181. In essence, Lin blamed the contradictory testimony on a cultural misunderstanding. Lin conceded, however, that she registered her marriage with the Chinese government in 2004. JA 186.
Lin was also questioned why she did not mention the forced abortion during the Border Patrol interview. In vague and
B.
On March 1, 2011, the IJ issued a decision denying Lin’s applications for asylum, withholding of removal, and protection under the CAT, and ordered her removed to China. JA 50-65. The IJ found Lin not credible “in light of the inconsistencies, implausibilities, and contradictions” in her testimony, her application, and her statements during the Border Patrol interview. JA 61. The IJ also found that Lin’s attempts to explain the inconsistencies and omissions were “vague[ ], non-responsive[ ][,] and did not provide credible explanations.” Id.
Specifically, the IJ noted that Lin told the Border Patrol Agent that she was not married and:
[S]he was afraid that she would be forced to have an abortion or tubule [sic] ligation and that if she were forced to have a tubule [sic] ligation, she was afraid that she would never be able to get married. Despite discussing her fear of a future forced abortion, [Lin] did not tell the border patrol officer that she had previously had a forced abortion. In marked contrast, [Lin] testified in Court that she was already married and had been forced to have an abortion.
JA 61. The IJ found Lin’s explanations for the inconsistencies “wholly inadequate and incredible.” Id. The IJ noted that Lin’s “cultural misunderstanding” explanation regarding her marital status was undermined by the fact that during her first hearing she repeatedly testified that she was married, and only after she was confronted with her inconsistent testimony did she “manufaeture[ ] her explanation.” JA 62. The IJ also found that Lin’s husband’s affidavit referring to their marriage as “permitted and blessed” undercut Lin’s claim of a misunderstanding.
Of even greater significance to the IJ, however, was Lin’s failure to mention her forced abortion during her Border Patrol interview. Id. The IJ explained:
Lin attempted to blame the omission on the border patrol officer rushing her. [Lin] was repeatedly evasive and unresponsive when asked directly whether she told the border patrol officer that she had a forced abortion. Only after being asked repeatedly did [Lin] admit that she did not tell the border patrol officer about her alleged forced abortion. [Lin] attempted to explain that she wanted to tell the officer about the abortion, but he told her that there was no space for details and to tell the judge. The Court finds this explanation entirely incredible. The alleged forced abortion is not a detail, but rather is the crux of [Lin’s] entire asylum claim.... It is wholly implausible, therefore, that [Lin] would not have mentioned an experience as pivotal and traumatic as a forced abortion, when she had sufficient opportunity to describe other details about her alleged fear of returning to China.
Id.
The IJ also noted that he had reservations about Lin’s credibility even before the omission regarding the forced abortion came to light. Id. Specifically, the IJ found implausible Lin’s explanations for why she obtained the abortion certificate. JA 63. The IJ noted that Lin changed her testimony on this issue several times, first stating that she requested the certificate because she knew the United States pro
Given these inconsistencies, the IJ determined that Lin’s testimony was not credible. JA 64. Noting that an adverse credibility determination can be overcome if the alien can independently prove past persecution, the IJ determined that Lin had not provided sufficient evidence to prove she was the victim of a forced abortion. Id. The IJ discredited the abortion certificate as unauthenticated and suspect in light of Lin’s testimony, and noted the State Department’s report that population controls are no longer strictly enforced in China. Id. Accordingly, the IJ denied all of Lin’s claims.
The Board agreed with the IJ’s decision in all pertinent parts and adopted its decision denying Lin’s claims. JA 3-4. It held that the IJ provided “specific and cogent reasons” for the adverse credibility determination, repeating the IJ’s concerns with Lin’s testimony. JA 3. The Board also agreed that Lin failed to provide independent evidence proving that she suffered past persecution. JA 4. Additionally, the Board rejected Lin’s argument that the IJ’s decision allowing the government to submit additional evidence violated her due process rights. Id. The Board noted that IJs have the authority to set and extend deadlines and that Lin was given an opportunity to respond to the new evidence. Id.
II.
A.
Where the Board affirms and adopts the IJ’s decision, we review both decisions as the final agency action. Marynenka v. Holder,
B.
The INA vests in the Attorney General the discretionary power “to grant asylum to aliens who qualify as ‘refugees.’ ” Dankam v. Gonzales,
Aliens face a heightened burden of proof to qualify for withholding of removal. Dankam,
III.
A.
Lin first contends that substantial evidence does not support the agency’s adverse credibility determination. Applicants can establish their eligibility for asylum simply by providing credible testimony about their experiences. Marynenka,
As recounted above, the agency gave multiple reasons for the adverse credibility determination. Chief among them, however, were the inconsistencies between Lin’s statements during the Border Patrol interview and her later testimony and application materials. Lin gave shifting, contradictory accounts of her marital status and omitted any mention of her forced abortion. After reviewing the record, we agree with the agency that these omissions and inconsistencies provide sufficient justification for the adverse credibility determination.
The foundation of Lin’s claim is that she was subjected to a forced abortion; however, when interviewed upon entering the country, she failed to mention the incident at all. We are highly skeptical of such an important omission. As the agency noted, the forced abortion is not a detail, but rather is the very heart of Lin’s claim for asylum. The traumatic details of the incident as later described by Lin, including being forced into a van and whisked away to the hospital, make it wholly implausible that she would fail to even mention the incident during the interview. See Xiao v. Mukasey,
Lin’s explanation for the omission — that the Border Patrol Agent told her he could not record the details of her claim — is undermined by the fact that Lin was able to mention several other details of her past, such as the fact that she was unmarried, had a child out of wedlock, and instructed her son to refer to her as “Auntie.” Perhaps most importantly, Lin acknowledged that she obtained the abortion certificate with an eye toward using it to help her gain asylum in the United States. This indicates that she was already aware of the significance of the incident with regard to a future asylum claim, making her omission all the more suspect.
We also agree with the IJ’s decision discounting Lin’s explanation that a cultural misunderstanding accounted for her inconsistent testimony regarding her marital status. Her explanation is undermined by the fact that she repeatedly and unquali-fiedly referred to herself as married throughout the asylum process, only to change course when confronted with her earlier, inconsistent testimony. Further undercutting her claim are her husband’s affidavit attesting that the couple’s marriage was “permitted and blessed,” and the statement from her mother-in-law referring to the couple as married. Taken together, these facts give ample support for the IJ’s determination that Lin’s testimony was not credible.
In concluding that, under the facts and circumstances of this case, Lin’s inconsistencies and omissions between her Border Patrol interview and her later testimony are sufficient to support the agency’s adverse credibility determination, we note our hesitation in relying so extensively on statements made in such a setting. Most so-called “airport interviews” are brief affairs given in the hours immediately following long and often dangerous journeys into the United States. These circumstances caution against basing an adverse credibility determination solely on inconsistencies and, especially, omissions
It is for these reasons a significant number of our sister circuits have limited the extent to which credibility determinations may be based on airport interviews. See, e.cj., Moab v. Gonzales,
With these considerations in mind, we repeat why they fail to rescue Lin’s claim for asylum. Lin’s allegation of a forced abortion is not a minor evidentiary detail whose absence can be overlooked, it is the very core of her claim. Moreover, her acknowledgment that she requested documentation of the procedure for the express purpose of supporting a future asylum claim indicates that she understood the importance of the incident. We therefore simply cannot countenance her complete failure to mention it during her interview. We also note that Lin’s testimony regarding her marital status was not a mere omission, but a direct contradiction for which she later was unable to provide a believable explanation.
We also agree with the agency’s assessment that Lin’s demeanor and non-responsiveness during questioning on certain topics support the adverse credibility determination. For example, Lin’s testimony as to why she requested the abortion certificate was initially hesitant and confused. As explained above, she changed course several times before finally admitting that she thought the certificate would be helpful in supporting a future asylum claim. JA 115. Similarly, Lin gave a series of non-responsive answers to direct questions from the IJ asking whether she told the'Border Patrol Agent about the forced abortion. JA 192-95. Only under repeated questioning did she acknowledge that she did not mention the procedure. Id. Lin’s dubious testimony in these areas is especially significant given that they relate directly to the forced abortion, a topic about which there is already considerable question.
In sum, far from compelling a contrary result, the evidence in this case reliably supports the agency’s adverse credibility determination. See Niang,
B.
Although adverse credibility determinations are generally fatal to an asylum claim, an applicant may still prevail if she can prove actual past persecution through independent evidence. Camara v. Ashcroft,
As discussed above, the abortion certificate provided by Lin is suspect in light of her unreliable testimony. In addition, her evidence of a fíne for a “violation of family planning regulations,” which by itself is hardly demonstrable proof that she suffered a forced abortion, -is countered by reliable evidence from the Department of State that family planning regulations are no longer strictly enforced in the area. See Suarez-Valenzuela v. Holder,
Accordingly, we affirm the agency’s denial of the Petitioner’s claim for asylum and for protection under the CAT. She also necessarily fails to meet the more stringent burden of proof required to qualify for withholding of removal.
IV.
Finally, Lin argues that her due process rights were violated by the IJ’s decision allowing the government to submit supplemental evidence after the August 31, 2010 merits hearing. Aliens are entitled to due process of law in deportation proceedings. Demore v. Kim,
Lin’s argument is without merit. First, IJs have discretionary authority to set and extend deadlines for the submission of evidence in their courts. See 8 C.F.R. § 1208.13(a). Second, the IJ held an additional hearing to allow the new evidence to be fully examined and give Lin an opportunity to explain her prior statements. The parties were afforded several months to prepare for the hearing. In light of this, Lin has not shown how the IJ’s decision limited her right to be heard in a meaningful manner. We therefore reject her due process argument.
Y.
For the reasons stated, we deny Lin’s petition for review.
PETITION DENIED.
Notes
. Lin and her husband hired a private doctor to secretly remove her IUD to allow her to become pregnant again. JA 294.
. The IJ also mentioned two additional areas of concern with Lin's testimony. First, the IJ thought Lin’s statements regarding where she and her husband lived to be confused and inconsistent. Id. According to the IJ, Lin first testified that they moved to Fuzhou City and rented a room there in July 2007 in order to secretly remove her IUD and have another child. Id. On her asylum application, however, she listed her address as Fuzhou City beginning in 2004. Id. Lin testified to the court that up until 2007 she actually lived with her parents in Ming Ho County, and her husband would sometimes visit her there. Id. The IJ stated that he found Lin's testimony about her residence "to be difficult to follow and generally inconsistent. Although not a significant inconsistency in [her] testimony, her changing account of where she and her husband lived further undermines her general credibility.” Id.
Secondly, the IJ thought it noteworthy that Lin did not provide a letter from her parents to corroborate her testimony that family planning authorities visited their home every few days looking for her. Id. The IJ found the lack of corroboration unreasonable given Lin’s testimony that she remains in regular contact with her parents. Id.
. However, we note our disagreement with the agency's determination that Lin’s testimony about her place of residence in China was inconsistent or misleading. Likewise, we find no support for the agency's reliance on Lin's failure to provide a letter from her parents attesting that Chinese officials continue to visit their home in search of Lin and her husband when she provided a letter from her mother-in-law attesting to precisely the same facts. In light of the larger issues with Lin’s claim, however, these errors of the agency were harmless.
Concurrence Opinion
concurring:
This court’s review of the agency’s adverse credibility determination entails a relatively' simple inquiry: whether substantial evidence, exemplified by “specific, cogent reason[s],” exists to support the agency’s findings. Singh v. Holder,
I.
A so-called “airport” or “border” interview takes place “when an alien is deemed inadmissible immediately upon entering the United States and indicates an intention to apply for asylum or a fear of persecution.” Diallo v. Gonzales,
The interview takes place immediately after an alien has arrived in the United States, often after weeks of travel, and may be perceived by the alien as coercive or threatening, depending on the alien’s past experiences. Moreover, at the interview, the alien is not represented by counsel, and may be completely unfamiliar with United States immigration laws and the elements necessary to demonstrate eligibility for asylum. Finally, because those most in need of asylum may be the most wary of governmental authorities, the BIA and reviewing court must recognize, in evaluating the statements made in an interview, that an alien may not be entirely forthcoming in the initial interview.
Ramsameachire,
In Ramsameachire, one of the leading decisions in this area, the Second Circuit
First, a record of the interview that merely summarizes or paraphrases the alien’s statements is inherently less reliable than a verbatim account or transcript. Second, similarly less reliable are interviews in which the questions asked are not designed “to elicit the details of an asylum claim,” or the INS officer fails to ask follow-up questions that would aid the alien in developing his or her account. Third, an interview may be deemed less reliable if the alien appears to have been reluctant to reveal information to INS officials because of prior interrogation sessions or other coercive experiences in his or her home country. Finally, if the alien’s answers to the questions posed suggest that the alien did not understand English or the translations provided by the interpreter, the alien’s statements should be considered less reliable.
Id. at 180 (internal citations omitted).
II.
In this case, I believe several of the factors outlined in Ramsameachire counsel in favor of scrutinizing Lin’s initial interview with á particularly critical eye. I detail these factors not to disparage the majority’s reasoning, but to emphasize the need to approach these interviews with extreme caution.
As a threshold matter, the discrepancies noted by the IJ are derived primarily from the handwritten notes of the translator contained in the document entitled “Translator Questions.” Although portions of the document reflect Lin’s verbatim responses to the questions asked, other portions slip into the third person and thus appear to be the translator’s own “summar[y]” or “paraphrase[]” of Lin’s statements. Ramsameachire v. Ashcroft,
Second, the Translator Questions were not designed “to elicit the details of an asylum claim,” nor is there any evidence the questioning officer “ask[ed] follow-up questions that would aid [Lin] in developing ... her account.” Ramsameachire,
Finally, the overall circumstances of Lin’s border interview deserve mention. She was seized by armed agents immediately after crossing the Rio Grande, handcuffed, and transported by police car to the border patrol station. She testified she had never seen a firearm before and described in detail the terror she felt during the initial detention and questioning. If Lin’s subsequent account of her experience at the hands of the Chinese government is to be believed, she may well have had valid reasons to be less than forthcoming with governmental authorities in such a situation. .See Ramsameachire,
In this case, the IJ, albeit not in so many words, acknowledged each of the above circumstances and concluded, nevertheless, that the border interview was sufficiently reliable so as to serve as a basis for his adverse credibility determination. The record here does not compel a contrary result. See Niang v. Gonzales,
III.
The issue in the present case, as in so many immigration cases, turns on the standard of review. While the IJ could have — and perhaps should have — engaged in a more detailed analysis of his reasons for relying on the border interview, I am satisfied the record of this case reflects that the appropriate factors were adequately considered. ■ I thus concur in denying the petition for review.
The Second Circuit derived these factors from two Third Circuit decisions, Senathirajah v. INS,