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Long-Gang Lin,*Fn1 v. Erich. Holder

December 23, 2010

LONG-GANG LIN,*FN1 PETITIONER,
v.
ERICH. HOLDER, JR., ATTORNEY GENERAL OF THE UNITED STATES, RESPONDENT.



Petition for Review of an Order of the Board of Immigration Appeals. No. A200-112-626

The opinion of the court was delivered by: Tinder, Circuit Judge.

ARGUED SEPTEMBER 28, 2010

Before EASTERBROOK, Chief Judge, and SYKES and TINDER, Circuit Judges.

Long-Gang Lin sought asylum and withholding of removal based on his wife's alleged forced abortion. An Immigration Judge ("IJ") denied relief based on an adverse credibility determination. The Board of Immigration Appeals ("Board") affirmed. Lin petitions for review of the Board's decision, contending that the Board erred in affirming the IJ's adverse credibility determination. He also argues that the IJ and Board failed to recognize the ineffective assistance of his counsel and that he was denied his right to a fair hearing. Lastly, he claims that the IJ should have inquired into his competency to testify.

I. BACKGROUND

Lin is a native and citizen of the People's Republic of China. He entered the United States on August 25, 2005. The Department of Homeland Security ("DHS") served him with a Notice to Appear and charged that he was subject to removal. Lin admitted the allegations in the Notice and applied for asylum and withholding of removal. He submitted supporting documentation, including purported abortion and sterilization certificates for his wife. DHS submitted Forensic Document Labora-tory ("FDL") findings concerning the certificates, and the IJ continued the proceedings to allow Lin to respond. Thereafter, Lin submitted a letter from his attorney challenging the FDL findings.

On April 16, 2008, the IJ held a hearing at which Lin testified. He stated that the documentation attached to his asylum application was genuine. He said that he had reviewed the contents of his application and that everything in it was true. Lin was born in Fuzhou City, Fujian Province, China in 1967 and married Yong Chen in 1996. They have a daughter who was born in 2000. Lin stated that he had a second-grade education and could not read or write. He worked at a thermos factory from 1987 through 1996, when he was fired for being "disruptive." He explained that he would "sometimes hav[e] troubles with [his] co-workers, like . . . coming to blows." In 1996, Lin opened a diner but was forced to close it in 2001 to make room for new development. Neither Lin nor his wife has worked since 2001; they have supported them-selves and their daughter on their savings. Lin's wife still lives in Fuzhou.

Lin said that he and his wife wanted to have a second child because it had been "quite a while" since their daughter's birth. He "knew a little bit" about China's one child policy, including that they had to apply for permission to have a second child. They did not do so. He also knew that if they had a second child, they would have to pay a social compensation fee which they could not afford. According to Lin, his wife complied with the requisite quarterly pregnancy tests, but he had no documentation to prove it. He claimed that he told her not to go for the check-ups, but she did because the neighborhood birth control office told her she had to report.

Lin testified that his wife became pregnant with their second child in September 2004 and that on September 10, people from the neighborhood committee came to their house and discovered the pregnancy. He said that the committee conducted random checks and checks when they suspected someone might be violating the family planning laws. When questioned regarding how far along his wife was in the pregnancy, Lin stated that she was a little more than three months pregnant and that she looked pregnant. According to Lin, the members of the committee took his wife by force to the neighborhood committee office. He claimed he tried to resist and they "came to some physical contact"-"almost" to the point of "using fists." He did not injure anyone, but said he threatened to do so. He added that they pushed each other, but did not knock each other down. Lin stated that he followed his wife to the neighborhood committee office where there was more "pushing around." They were in the office for about twenty minutes. Lin claimed his wife was eventually taken away to a local hospital to have an abortion. When asked if she had any operation other than the abortion, he responded that she had not. He explained that he did not go to the hospital with his wife because the committee members told him that it was his "wife's . . . problem only" and if he followed her, he would be "in trouble too." The IJ asked Lin about the purpose of the stop at the committee office on the way to the hospital. Lin could offer no explanation other than that "they took my wife there."

Lin later stated that the abortion occurred on December 25, 2005. Subsequently, when asked when his wife was taken to the hospital, he answered, "December 5, 2003." The IJ asked Lin if he was sure about the date, and Lin replied that the abortion occurred in December 2004. He then claimed that "the matter that hap- pened at the hospital . . . happened the next day." The IJ sought clarification of the dates and events. Lin said that the people from the neighborhood committee came to his house "August 20 something 2004." The IJ indicated that Lin was giving different answers to the same question and again asked him for the date on which the neighborhood committee went to his house and discovered his wife's pregnancy. Lin said, "2004." The IJ asked him to be more specific, and Lin claimed that "they discover[ed] the pregnancy in May 2004." This prompted the IJ to ask how the members of the committee discovered that his wife was pregnant in May 2004. Lin claimed that her pregnancy was visible at that time. The IJ pressed further on the date, and Lin said that the officials came to his house in May to "do [a] regular check" for compliance at which time his wife was not pregnant. He stated that they came again in September 2004 and found her pregnant. The IJ asked if a pregnancy test was administered. Lin said that ultra-sound technology was used in a hospital. The IJ asked when the abortion occurred; Lin answered, "December the 5th, 2004." The IJ inquired whether Lin knew that was the third date he had given, and Lin explained that he had remembered that the date was December 5, 2004. According to Lin, his wife did not agree to the abortion but that did not "matter because the decision was made by the committee."

Lin stated that he had an x-ray report to prove that his wife had an abortion. He claimed the doctor sent the report to his house in China and his wife mailed it to him. He claimed that the report said that pregnancy is forbidden and his wife is not allowed to become pregnant. When the IJ asked if anything was done to prevent his wife from becoming pregnant again, Lin said, "They didn't do anything. They just told us that no pregnancy anymore." Lin testified that both he and his wife were physically capable of having another child.

The IJ asked Lin why he feared returning to China. Lin responded that he "would be unemployed" and he could not find work because he was uneducated and illiterate. Lin admitted that this was part of the reason he came to the United States and claimed the other part was the loss of his second child.

As mentioned, Lin submitted documentation to sup-port his claim. In his political asylum statement submitted with his application, Lin wrote that his wife became pregnant for the second time in September 2004 and that on December 5, 2004, the family planning officials came to their home and took her to the hospital to have an abortion and sterilization. Lin had a letter and translation of a radiology examination report, indicating that Yong Chen, his wife, had both fallopian tubes sterilized. He also submitted a letter from his wife in which she said that she became pregnant the second time in September 2004 and that she was taken on December 5 to a hospital to have a forced abortion and sterilization. She claimed that she received the abortion and sterilization certificates from the officials of the neighborhood family planning office later that month. Finally, Lin provided translated certificates indicating that an abortion and sterilization were per- formed on Yong Chen on December 5, 2004. DHS submitted the findings of a forensic document examiner who determined that "[i]t is unlikely that [the abortion and sterilization certificates] are genuine." Several reasons were given to support this determination. Lin responded with a letter from his then-attorney Li Nan Chiang.

On April 16, 2008, the IJ issued an oral decision. Based on Lin's concession of removability and admission of allegations in the Notice to Appear, the IJ found him removable as charged. She then considered his application for asylum and withholding of removal. The IJ took into account Lin's "limited education and alleged functional illiteracy" and his demeanor while testifying and found him not credible. She noted that he "was unable to provide the most basic of information that forms the very foundation of his claim" ...


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