Lifei Lin v. Michael Mukasey, Attorney General

Of the Sixth Circuit, sitting by designation.*
Not for Publication in West’s Federal Reporter
United States Court of Appeals
For the First Circuit
No. 07-2301
LIFEI LIN,
Petitioner,
V.
MICHAEL MUKASEY, ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Lipez, Circuit Judge,
Merritt, Senior Circuit Judge, *
and Howard, Circuit Judge.
David V. Bernal, Assistant Director, Office of Immigration
Litigation, LaTia N. Bing, U.S. Department of Justice, and Anthony
C. Payne, Senior Litigation Counsel with Office of Immigration
Litigation, U.S. Department of Justice, were on brief for
Respondent.
Wei Jia was on brief for Petitioner.
May 8, 2008

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The immigration judge also denied Lin’s request for protection1
pursuant to the Convention Against Terror, but Lin did not appeal
that part of the decision.
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MERRITT, Senior Circuit Judge. Petitioner Lifei Lin, a
citizen of the People’s Republic of China, applied for asylum,
relief from withholding of removal and relief under the Convention
Against Torture on the ground that he had been arrested and
mistreated by Chinese authorities due to violations of Chinese
family planning laws. Lin seeks review of the Board of Immigration
Appeals’ July 25, 2007, decision dismissing his appeal from an
immigration judge’s March 20, 2006, decision, which denied his
application for asylum and withholding of removal. This Court’s 1
jurisdiction is governed by section 242 of the Immigration and
Nationality Act, 8 U.S.C. § 1252, as amended by the REAL ID Act of
2005, Pub. L. No. 109-13, Div. B, 119 Stat. 231, which provides for
review of final orders of removal. Lin contends that the adverse
credibility findings of the immigration judge and upheld by the
Board of Immigration Appeals are not supported by substantial
evidence. Lin also contends that the Board impermissibly engaged
in its own fact finding and that he was deprived of his due process
rights when the immigration judge failed to explicitly state in the
decision her reliance on the REAL ID Act in assessing his
credibility under a “totality of the circumstances” standard. For
the following reasons we deny the petition.

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I.
Mr. Lin was born in Fuzhou City, China, on March 7, 1983. He
“married” on September 10, 2002, with a celebration among family
and friends, but Lin acknowledges that the marriage was not
official because both the bride and groom were underage under
Chinese law. A child was born to the union on November 17, 2003.
Lin’s “wife” and son remain in China. Upon learning of the
pregnancy and the underage marriage, the authorities arrested Lin.
Lin claims he was detained by authorities when he refused to
disclose the whereabouts of his girlfriend for fear she would be
forced to abort and because he was unable to pay the fine. Lin
left China in 2003 because he feared future persecution based on
his failure to follow China’s family planning laws by marrying
underage and by having a child without permission, as well as his
failure to pay a fine imposed due to the violations.
After leaving his home, Lin went into hiding – first in China,
then in Holland and Peru. He eventually made his way to the United
States and arrived at Miami International Airport on February 6,
2005. Lin had no valid travel documents or other papers and paid
$7,000 or $8,000 for a smuggler to get him into the United States.
He requested political asylum and said he left China because he was
“afraid of being punished for impregnating [his] girlfriend.” Lin
fears that he would be persecuted if he returned to China for
violations of the family planning laws.

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II.
To qualify for asylum, an alien needs to demonstrate that he
is a refugee due to previous persecution or a well-founded fear of
future persecution based on race, religion, nationality, membership
in a particular social group, or political opinion. 8 U.S.C. §
1158(b)(1); Berrio-Barrera v. Gonzales, 460 F.3d 163, 167 (1st
Cir. 2006). With regard to a fear of future persecution, the
applicant must demonstrate an objectively well-founded fear of
persecution on a protected ground and that this fear is genuine.
Aguilar-Solis v. INS, 168 F.3d 565, 572 (1st Cir. 1999) (proving
the objective and subjective components of a well-founded fear of
future persecution requires the petitioner to show her fear is
“both genuine and objectively reasonable”). Fear of forced
abortion or sterilization is categorized as fear of persecution on
account of political opinion. 8 U.S.C. § 1101(a)(42) (“A person
who has a well-founded fear that he or she will be forced to
undergo [a forced abortion or sterilization] procedure or [is]
subject to persecution for failure, refusal, or resistance [to
undergoing such a procedure] shall be deemed to have a well-founded
fear of persecution on account of political opinion.”); Zheng v.
Gonzales, 475 F.3d 30, 34 (1st Cir. 2007). In addition, the spouse
of a person forced to undergo sterilization or abortion procedures
may be deemed to have a well-founded fear of persecution. Lin v.
Ashcroft, 371 F.3d 18, 21 (1st Cir. 2004). Lin claims persecution

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as the result of the Chinese government’s efforts to enforce its
coerced population control policies, including the possibility of
forced sterilization for him or his girlfriend should he return to
China.
Lin’s applications were denied because the immigration judge
found that he lacked credibility, primarily due to inconsistencies
among his testimony at the hearing, his asylum application and
statements made during two interviews held shortly after he entered
the country. See Oral Decision of the Immigration Judge at 9-11.
The immigration judge set out numerous discrepancies in detail in
her decision. Based on these discrepancies, the immigration judge
discredited the majority of Lin’s claimed fear of persecution and
torture should he return to China.
For example, the immigration judge found a discrepancy as to
when Lin’s girlfriend’s pregnancy was reported to the authorities.
Lin testified at his hearing that his “wife” had been pregnant for
little over a month when the authorities found out, but notes taken
during an earlier credible fear interview suggest that she was five
months pregnant. The immigration judge also found a discrepancy as
to the reasons given by Lin for his detention by the authorities.
Lin did not mention during his credible-fear interview any concern
about his girlfriend being forced to have an abortion or fear that
either or both of them would be forcibly sterilized at a later
date. The only fear Lin expressed at that time about returning to

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China concerned the punishment he might face for his failure to pay
the fine. Later, however, during direct examination at the
hearing, Lin expressed a fear of forced sterilization should he
return to China. He also testified that he fled China because he
feared further beatings based on the beating he says he received by
Chinese authorities when he refused to divulge the whereabouts of
his girlfriend for fear she would be forced to have an abortion.
Also noted by the immigration judge was a discrepancy about the
duration of detention: Lin reported the detention as lasting two
days during the asylum interview but said it was four days on
direct examination during his hearing before the immigration judge.
Lin also reported being beaten with an electric baton in his asylum
interview, but did not mention until his hearing that he had been
injured and hospitalized due to the beating.
The immigration judge also noted the unexplained discrepancy
in why Lin originally claimed to have been arrested on January 5,
2003, but then later testified that he was actually arrested on
March 30, 2003. Similarly, the immigration judge noted a
discrepancy between Lin’s application for asylum and his asylum
interview concerning the date he left China. June 20, 2004, was
the date given at the asylum interview, but October 20 2003, is the
date Lin gave in his asylum application. Lin has also submitted
contradictory evidence regarding the events that took place

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subsequent to his arrest in China and prior to his arrival in the
United States.
Based on these multiple discrepancies, the immigration judge
found that Lin had failed to meet his burden of proof with regard
to his asylum application. Because Lin failed to meet the burden
of proof for asylum, he was also unable to meet the more stringent
standard for withholding of removal. Rodriguez-Ramirez v.
Ashcroft, 398 F.3d 120, 123 (1st Cir. 2005) (finding that because
the burden of proof necessary to establish an asylum claim is lower
than the burden of proof required to prevail on a withholding of
removal claim, “the BIA’s rejection of the petitioner's asylum
claim, if sustainable, sounds the death knell for his counterpart
claim for withholding of removal”).
Lin appealed the denial of his applications to the Board of
Immigration Appeals, which affirmed on the ground that the adverse
credibility finding was not clearly erroneous. The Board decision
focused primarily on the discrepancies concerning various dates,
such as when Lin left China, when he was arrested, and the date on
which his girlfriend’s pregnancy was discovered by the authorities
as well as the circumstances surrounding the disclosure of the
pregnancy to the authorities. The Board also noted the
inconsistencies in Lin’s statements concerning the events that took
place after he was arrested and his activities and whereabouts

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prior to entering the United States. Decision of the Board of
Immigration Appeals, July 25, 2007.
Lin petitions this Court for review of the Board’s decision.
He contends that the adverse credibility finding was not supported
by substantial evidence. We review the Board’s findings of fact
under a substantial evidence standard, under which the agency’s
findings are conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary. We review the entire record
to assess whether the findings are supported by substantial
evidence. Where the Board adopts the immigration judge’s ruling,
but also engages in discussion of its own, as here, we review both
decisions. Hem v. Mukasey, 514 F.3d 67, 69 (1st Cir. 2008). Under
the deferential substantial evidence standard, we consider whether
the agency’s ruling is supported by “reasonable, substantial and
probative evidence on the record as a whole.” INS v. Elias-
Zacarias, 502 U.S. 478, 481 (1992). Upon review of the entire
record, we hold that substantial evidence supports the findings of
the immigration judge as affirmed by the Board of Immigration
Appeals. The discrepancies are well documented in the immigration
judge’s decision and the record does not compel a contrary
conclusion.
Lin also contends that the Board violated its scope of review
because it impermissibly engaged in fact finding when it
“determined that Lin originally claimed to have been arrested on

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The new language provides:2
Credibility determination. Considering the totality of
the circumstances, and all relevant factors, a trier of
fact may base a credibility determination on the
demeanor, candor, or responsiveness of the applicant or
witness, the inherent plausibility of the applicant’s or
witness’s account, the consistency between the
applicant’s or witness’s written and oral statements
(whenever made and whether or not under oath, and
considering the circumstances under which the statements
were made), the internal consistency of each such
statement, the consistency of such statements with other
evidence of record (including the reports of the
Department of State on country conditions), and any
inaccuracies or falsehoods in such statements, without
regard to whether an inconsistency, inaccuracy, or
falsehood goes to the heart of the applicant’s claim, or
any other relevant factor.
8 U.S.C. § 1158(b)(1)(B)(iii); see also 8 U.S.C. §§ 1231(b)(3)(C)
& 1229a(c)(4)(C) (credibility determination for removal
proceeding).
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January 5, 2003, but then later testified that the event occurred
on March 30, 2003.” Lin claims the immigration judge made no such
finding in her decision. Petitioner’s Br. at 10. Contrary to
Lin’s argument, however, the immigration judge explicitly found a
discrepancy when she said “in the asylum interview respondent
asserts he was arrested on January 5, 2003, as opposed to March 30,
2003, according to his direct testimony.” Oral Decision of the
Immigration Judge at 11. Accordingly, Lin’s argument concerning
impermissible fact finding by the Board fails.
Lin also argues that his due process rights were violated
because the immigration judge did not clearly indicate that new
amendments to the REAL ID Act applied to Lin’s asylum application 2

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and yet the Board, on appeal, explicitly applied the provisions.
The import of the amendments to the REAL ID Act is to eliminate the
“heart of the claim” rule and instead to rely on a “totality of the
circumstances” rule in making credibility determinations. The
change allows the immigration judge to make credibility findings
based on all the evidence – not just evidence that goes to the
“heart” of the petitioner’s claims. See Castañeda-Castillo v.
Gonzales, 488 F.3d 17, 23 n.6 (1st Cir. 2007) (en banc) (under Real
ID Act “fact-finder is entitled to draw the falsus in omnibus
inference based on inaccuracies, inconsistencies, or falsehoods,
without regard to whether they go to the heart of the applicant's
claim,” although the amendment would not have changed result in
case at bar) (internal quotation marks and punctuation omitted);
Chen v. United States Att'y Gen., 454 F.3d 103, 106-07 n.2 (2d Cir.
2006) (per curiam) (in case in which Real ID Act inapplicable,
stating that new provision would seem to overrule certain Second
Circuit credibility determination rules); Chen v. United States
Att'y Gen., 463 F.3d 1228, 1233 (11th Cir. 2006) (applying Real ID
Act; rejecting argument that discrepancy was trivial); Jibril v.
Gonzales, 423 F.3d 1129, 1138 n.1 (9th Cir. 2005) (opining that if
Real ID Act applied to the case, it would change result dictated by
Ninth Circuit's heart of the claim rule); In re J-Y-C-, 24 I. & N.
Dec. 260, 265 (BIA 2007) (not necessary under Real ID Act that

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The immigration judge is entitled to a presumption of3
regularity in her rulings such that the failure to explicitly
mention that the REAL ID Act applied to the application does not
violate Lin’s due process rights. Enwonwu v. Gonzales, 232 Fed.
Appx. 11, 15 (1st Cir. May 10, 2007) (no due process violation
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inconsistencies relied on in credibility determinations go to the
heart of the claim). But see Kadia v. Gonzales, 501 F.3d 817, 821-
22 (7th Cir. 2007) (in case in which Real ID Act not applicable,
expressing skepticism that Real ID Act revives “discredited”
doctrine of falsus in uno, falsus in omnibus).
Consequently, we may not reverse the Board’s decision on the
ground that the inconsistencies it relied on in affirming the
adverse credibility do not go to the “heart” of Lin’s claim.
However, the immigration judge found Lin’s testimony not credible
with regard to several facts that “go to the heart” of Lin’s asylum
claim. Oral Decision of the Immigration Judge at 8, Mar. 20, 2006.
Therefore, Lin’s application fails to meet the necessary burden
under either the new, more-stringent standard of the REAL ID Act
amendment that allows the immigration judge to assess credibility
based on every fact put forth by the applicant in support of his
application or under the former “heart of the claim” standard that
requires the immigration judge to look only to those facts central
to the claims in the application. Accordingly, even if the
immigration judge did not apply the new “totality of the
circumstances” language from the REAL ID Act amendments, and we
have no reason to believe that she did not, Lin suffered no 3

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where presumption of regularity attaches to agency action absent
petitioner putting forth “concrete evidence” to the contrary);
McLeod v. INS, 802 F.2d 89, 94-95 & n.8 (3d Cir. 1986) (same).
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prejudice from the immigration judge’s reliance on the “heart of
the claim” standard for assessing credibility.
For the foregoing reasons, the petition is denied.

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