Lin Bing v. ATTORNEY GENERAL OF THE UNITED STATES On

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-1021
___________
LIN BING,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of an Order
of the Board of Immigration Appeals
Agency No. A98 720 465
Immigration Judge: Miriam K. Mills
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 1, 2008
Before: AMBRO, FUENTES and FISHER Circuit Judges
(Filed: October 9, 2008)
___________
OPINION
___________
PER CURIAM
Lin Bing, a native and citizen of China, petitions for review of a final order of
removal of the Board of Immigration Appeals (BIA). We will deny the petition.

-- 1 of 5 --

2
I.
Bing entered the United States in 2005, and was issued a Notice to Appear,
charging him with being present in the United States without having been admitted or
paroled, or arriving in the United States at a time or place other than as designated by the
Attorney General. Bing, who was placed in removal proceedings, conceded he was
removable on this basis, but applied for asylum, withholding of removal and relief under
the United Nations Convention Against Torture (CAT).
Bing testified that he had arthritis from the age of 10, and that he began practicing
Falun Gong in 1997 to relieve his condition. A.R. 71-72. He practiced in the park every
Sunday, and it made his arthritis go away. A.R. 72. On August 9, 1999, he was arrested
at home because of his Falun Gong practice, and was taken to a police station, and later a
detention center. A.R. 73. He was detained for a little more than a month, was shocked
with an electric gun, and hit with a stick on his back. He was in pain, and his nose was
bleeding a lot. A.R. 73. He believed he was later released because they could not hold
more people in the detention center. Id. He continued to practice Falun Gong at home
every Sunday by himself. Later, he practiced with some other friends. In December
2004, police came to his home when he was not there, saying that he was practicing Falun
Gong. Bing’s stepmother called him and told him that the police had come and had taken
his father instead. A.R. 74-75. He went to a relative’s home in Fuzhou, and then left for

-- 2 of 5 --

3
the United States. He testified that he continues to practice Falun Gong in the United
States every Sunday, at home by himself. A.R. 75.
The Immigration Judge (IJ) found Bing “marginally credible with respect to the
actual practice of Falun Gong,” but found, assuming Bing’s credibility, that he had failed
to meet his burden of proof. A.R. 51-55. The Board of Immigration Appeals (BIA) thus
afforded Bing a presumption of credibility pursuant to 8 U.S.C. § 1229a(c)(4)(C), but
agreed that Bing had failed to meet his burden of proof. Bing filed a timely petition for
review.
II.
We have jurisdiction to review a final order of removal of the BIA under 8 U.S.C.
1252(a)(1). Abdulai v. Ashcroft, 239 F.3d 542, 547 (3d Cir. 2001). The BIA here did not
expressly adopt the IJ’s findings; however, it deferred in large measure to those same
findings. Accordingly, we review both the IJ’s and the BIA’s decisions. See Korytnyuk
v. Ashcroft, 396 F.3d 272, 286-87 (3d Cir. 2005). We must sustain the Board’s removal
order if there is substantial evidence in the record to support it. Abdille v. Ashcroft, 242
F.3d 477, 483 (3d Cir. 2001).
Asylum may be granted solely on the testimony of the applicant. Even a credible
asylum applicant, however, may be required to supply corroborating evidence in order to
meet his burden of proof. See Chen v. Gonzales, 434 F.3d 212, 217-18 (3d Cir. 2005).
Before denying asylum based on a lack of corroboration, the BIA (or IJ) must conduct a

-- 3 of 5 --

4
three-part inquiry: (1) an identification of facts for which it is reasonable to expect
corroboration; (2) an inquiry as to whether the applicant has provided information
corroborating the relevant facts; and, if he has not, (3) an analysis of whether the
applicant has adequately explained his failure to do so. Abdulai, 239 F.3d at 554. If the
BIA or IJ fails to engage in this inquiry, findings regarding corroboration may be vacated
and remanded. Chukwu v. Attorney General, 484 F.3d 185, 192 (3d Cir. 2007).
Bing failed to meet his burden of proof, and the corroboration analysis by both the
IJ and BIA complied with the requirements of Abdulai. With regard to the first step of
the Abdulai inquiry, the IJ and BIA reasonably required Bing to corroborate his Falun
Gong practice given the centrality of the extent of his practice to his claim and the relative
ease with which he could have gathered the required evidence. See Chukwu, 484 F.3d at
192 (stating that “[i]t is reasonable to expect corroboration where the facts are central to
the applicant’s claim and easily subject to verification”). Bing testified that he had
practiced Falun Gong since 1997 due to an arthritic condition, but he provided no medical
evidence of that underlying condition, despite his testimony that his family members in
China still go to the doctor who treated him for arthritis when they are sick. A.R. 121.
Further, although Bing alleged that he had been imprisoned and suffered beatings at the
hands of Chinese authorities in 1999 for his practice, he produced no evidence of his
medical treatment after his release as corroboration of his injuries. Bing testified that one
of the doctors who treated him in 1999 was the same doctor who treated him for arthritis.

-- 4 of 5 --

The BIA also faulted Bing for failing to present testimony from a permanent1
lawful resident family friend from China (his “uncle”) with whom he has resided since
being paroled into the United States. Given Bing’s testimony that he practiced Falun
Gong in his bedroom and that nobody had ever seen him practice Falun Gong in the U.S.,
A.R. 85; it is not clear that Bing’s “uncle” would have been able to corroborate facts
central to his claim.
5
A.R. 121-22. As to the second step, the IJ and BIA accurately noted the numerous1
instances constituting an absence of corroborating evidence in the record showing Bing’s
continual practice of Falun Gong and his medical claims.
Finally, with regard to the third step of the Abdulai inquiry, as the BIA noted, the
IJ gave Bing an adequate opportunity to explain at the hearing why he did not submit this
evidence. A.R. 78, 121. The BIA and IJ developed a record on this issue and accurately
described the reasons proffered by Bing. The BIA and IJ also did not overlook any
salient facts in reaching the conclusion that these explanations were wholly inadequate.
Thus, because a rational trier of fact would not be compelled to find that the missing
evidence was unavailable, there are insufficient grounds for disturbing the IJ and BIA’s
corroboration findings. See 8 U.S.C. § 1252(b)(4).
We also agree that Bing has failed to satisfy his burden of proving eligibility for
CAT protection, as the record is devoid of evidence indicating that he faces a likelihood
of torture. For the foregoing reasons, we will deny the petition for review.

-- 5 of 5 --