Hui Lin v. Ashcroft

MEMORANDUM ***

In this petition, we determine whether substantial evidence supports the adverse credibility finding of the Board of Immigration Appeals (Board). If so, we need not address whether the Board improperly required Lin to provide corroborative evidence to support his application. The Board had jurisdiction under 8 C.F.R. §§ 3.1 (b)(3) and 240.53(a), and we have jurisdiction over this timely petition pursuant to 8 U.S.C. § 1252 (b).

The first question is whether the Board made an adverse credibility finding. The Board’s finding that Lin’s account was implausible is a credibility finding. Salaam v. INS, 229 F.3d 1234, 1238 (9th Cir.2000). We therefore review only the Board’s finding. That finding must be reviewed for substantial evidence, and it will not be overturned “unless the evidence presented compels a reasonable factfinder to reach a contrary result.” Lopez-Reyes v. INS, 79 F.3d 908, 911 (9th Cir.1996).

Lin asserts that the actions he and his wife took after his mother was detained should not support the Board’s adverse credibility finding because they were understandable. This case is distinguished from In Re B-, in which there was a very good reason why the…

dissenting.

I respectfully dissent. The BIA “ ‘must have a legitimate articulable basis to question the petitioner’s credibility, and must offer a specific, cogent reason for any stated disbelief.” ’ Salaam v. INS, 229 F.3d 1234, 1238 (quoting Osorio v. INS, 99 F.3d 928, 931 (9th Cir.1996)). Under our case law, we are required to reverse an adverse credibility finding that is “based on ‘speculation and conjecture’ and is not supported by evidence in the record.” Id. (quoting Akinmade v. INS, 196 F.3d 951, 957 (9th Cir.1999)).

Here, the BIA’s adverse credibility determination was based on nothing more than its intuitive disbelief that the birth control authorities would act as they did and that the petitioner would act as he did. There were no inconsistencies between Lin’s testimony and his application; in fact, his testimony is completely consistent with his declaration attached to his Form 1-589. Furthermore, the State Department country report, which is part of the administrative record in this case, acknowledges the existence of credible reports of forced abortions in Fujian, the province from which Lin emigrated. Thus, the adverse credibility finding is based on speculation…