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Lin v. Holder, 10-1401

By FindLaw Staff on December 23, 2010 3:43 PM
Petition for review of IJ's denial of a Chinese citizen's application for asylum and withholding of removal

Lin v. Holder, 10-1401, concerned a Chinese citizen's petition for review of a BIA's affirmance of an IJ's denial of his application for asylum and withholding of removal based on his wife's alleged abortion.

In denying the petition, the court held that, even if the abortion and sterilization certificates should have been given more weight, they contain nothing to suggest that these procedures were forced upon petitioner's wife.  The court also held that petitioner has given no reason to disturb the IJ's adverse credibility finding as, petitioner failed to meet his burden of explaining to the IJ's satisfaction the inconsistencies in his testimony and documents.  The court held that petitioner was afforded an opportunity for a full and fair hearing, and that although the petitioner failed to exhaust his claim of ineffective assistance of counsel, this claim is without merit.  Lastly, the court held that the failure to exhaust aside, petitioner's claim that the IJ should have determined whether he was competent to testify is rejected as, when an alien raises the issue of his competency with the IJ, the IJ generally is not expected to sua sponte initiate a competency evaluation.

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