Hui Lin v. U.S. Attorney General

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
NOVEMBER 2, 2011
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-11149
Non-Argument Calendar
________________________
Agency No. A087-441-540
HUI HUA LIN,
llllllllllllllllllllllllllllllllllllllll Petitioner,
versus
U.S. ATTORNEY GENERAL,
llllllllllllllllllllllllllllllllllllllll Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(November 2, 2011)
Before CARNES, HULL and PRYOR, Circuit Judges.
PER CURIAM:
Hui Hua Lin, a native and citizen of the People’s Republic of China, seeks
review of the Board of Immigration Appeals’ decision affirming the Immigration
Judge’s denial of her applications for asylum, withholding of removal, and relief

-- 1 of 7 --

under the United Nations Convention Against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment. In her original 2008 asylum application,
Lin asserted that she feared persecution based upon her political opinion. She
stated that if returned to China she might be forced to undergo sterilization
because she had violated the family planning policy by having one child and
expecting a second one. Her second child was born in February 2009. In a 2010
supplemental statement, filed the Friday afternoon before her Monday asylum
hearing, Lin argued for the first time that she feared persecution based upon her
religious belief as a Christian.
About her asylum application, Lin argues that the BIA erred by upholding
both the IJ’s adverse credibility determination regarding her fear of persecution
based on religious beliefs and its determination that she had not demonstrated a
well-founded fear of future persecution based on her violation of China’s family
planning policy. Lin did not argue to the BIA that the IJ erred by denying her
withholding or CAT claims. Even so, she asks us to reverse those decisions as
well.
I.
We review de novo our subject matter jurisdiction. Amaya-Artunduaga v.
U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006). “We lack jurisdiction to
2

-- 2 of 7 --

consider a claim raised in a petition for review unless the petitioner has exhausted
[her] administrative remedies” for that claim. Id. (citing 8 U.S.C. § 1252(d)(1)).
Because Lin failed to argue to the BIAthat she was entitled to withholding of
removal and CAT relief, she did not exhaust those claims, and we lack jurisdiction
to consider them.
II.
As for Lin’s asylum claim, because the BIA expressly adopted and affirmed
the IJ’s decision without an opinion, we review the IJ’s and BIA’s decisions. See
Ruiz v. Gonzales, 479 F.3d 762, 765 (11th Cir. 2007). “We review the IJ’s factual
determinations under the substantial-evidence test.” Forgue v. U.S. Att’y Gen.,
401 F.3d 1282, 1286 (11th Cir. 2005). We must “affirm the [IJ’s] decision if it is
supported by reasonable, substantial, and probative evidence on the record
considered as a whole.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.
2001) (quotation marks omitted). Under this test, “we view the record evidence in
the light most favorable to the agency’s decision and draw all reasonable
inferences in favor of that decision.” Adefemi v. Ashcroft, 386 F.3d 1022, 1027
(11th Cir. 2004) (en banc). Accordingly, “[t]o conclude the BIA’s decision should
be reversed, we must find that the record not only supports the conclusion, but
compels it.” Ruiz, 479 F.3d at 765 (quotation marks omitted).
3

-- 3 of 7 --

A.
The IJ may deny asylum petitions solely on an adverse credibility
determination, particularly if the applicant fails to produce corroborating evidence.
See Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1231 (11th Cir. 2006). Under the
applicable standard, credibility determinations are based on the totality of the
circumstances and all relevant factors “without regard to whether an
inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim.”
8 U.S.C. § 1158(b)(1)(B)(iii). Once an adverse credibility finding is made, the
burden shifts to the applicant to show that the finding is not supported by
“specific, cogent reasons” or was not based on substantial evidence. Id. at 1232
(quotation marks omitted). “[A] credibility determination, like any fact finding,
may not be overturned unless the record compels it.” Id. (quotation marks
omitted).
The record does not compel reversal of the IJ’s determination that Lin did
not credibly fear persecution due to her Christian faith upon return to China. Lin
began attending Christian churches as early as 2005 and strongly considered
baptism in 2006. Lin listed her religion as Christian in her 2008 asylum
application but did not assert that she feared persecution for her Christian faith.
Instead, her application stated that she sought asylum based on her political
4

-- 4 of 7 --

opinion and the Torture Convention. In an attached personal statement, she
asserted that her application was based on her fear of persecution in China based
on her violation of China’s family planning law. She expressed her fear of being
forced to undergo sterilization if she returned to China, but did not mention any
fear of religious persecution. She testified that she “assume[d] that [it] is only a
little bit of persecution” based on religion in China.
The IJ found that if Lin truly feared religious persecution in China, she was
on notice that she should assert that ground for asylum relief because her husband
left China and was granted asylum in the United States because of religious
persecution. He also is a Christian. But Lin did not raise this ground for asylum
until the Friday before her Monday asylum hearing in 2010. The IJ concluded that
this late filing was “suspicious” and “inconsistent with the fact that if [Lin]
believe[d] she would be persecuted on account of her religion then she would have
mentioned that in her asylum application.” Lin has failed to show this finding was
not based on specific, cogent reasons or not based on substantial evidence.
B.
Lin also contended that she had a well-founded fear of persecution because
she would be subject to forced sterilization upon return to China. Lin claimed that
Chinese population control measures permitted a couple to have only two children
5

-- 5 of 7 --

before forced sterilization, and she had two while living in America. The IJ found
the State Department Country Profile of China was more reliable than the
evidence Lin submitted. The profile found that the birth-limitation policy
prohibited forced sterilization or abortion, and the limitation policy varied
significantly nationwide. It also found that enforcement of the policy was less
stringent in rural areas, such as the Fujian Province, where Lin lived before she
came to this country. The profile also showed that the Fujian Province reported no
forced sterilizations during the last ten years.
The evidence Lin presented either was not from objective sources or was
unauthenticated. Her asylum application included letters from Lin’s sister and two
friends in the Fujian Province who alleged that they were forcibly sterilized after
the birth of their second child. Those witnesses were unavailable for cross
examination, and besides, those women purported to have their children while in
China, not overseas as Lin had. The government notices that Lin proffered to
illustrate the possible punishment that she faced were not authenticated by any
reputable organization or individual, were not signed, were obtained only for the
hearing, and did not identify their authors. The IJ thus found that those documents
had little evidentiary weight, noting that “documentation from China, particularly
6

-- 6 of 7 --

from Fujian Province, is subject to widespread fabrication and fraud.” The record
as a whole does not compel reversal of the IJ’s ruling.
PETITION DISMISSED IN PART, DENIED IN PART.
7

-- 7 of 7 --