Delayed Evidence Creates Credibility Problem

Gen Lin is a native and citizen of China. He entered the United States illegally in 2004. In 2008, he was served with a Notice to Appear before an Immigration Judge (IJ), and conceded removability.

To avoid removal, Lin petitioned for asylum, for withholding of removal, and for protection under the Convention Against Torture (CAT).

Unfortunately, he had a credibility problem.

In support of his petition, Lin asserted that he fled China to escape religious persecution. Lin is a practicing Christian.

Lin claimed that he joined a Christian church in China and was baptized there in 2003. Later that year, he was allegedly detained for five days for practicing his religion, interrogated about his church, severely beaten, and deprived of water and sleep.

According to Lin, after his family paid a fine and he was released from detention, he continued to fear persecution and decided to leave the country. He chose to come to the U.S. to have freedom to practice his religion.

The IJ denied Lin relief and ordered him removed to China. That decision was based on Lin's failure to file his petition for asylum within one year of his arrival, and on an adverse credibility determination. The IJ found Lin's testimony unworthy of belief largely because Lin had failed to provide corroborating witness testimony, despite having relatives in the United States, fellow congregants at his church, and eight-months to collect evidence for the removal proceedings.

Lin asked the Board of Immigration Appeals (BIA) to reopen his case -- and submitted plenty of evidence to support his claims -- but he failed to explain how he obtained this new documentation or to authenticate the evidence.

The BIA held that Lin did not satisfy his burden of showing prima facie eligibility for relief, and it denied his motion to reopen.

The Third Circuit Court of Appeals affirmed that decision, noting that the BIA considered the newly presented evidence and found it insufficient to establish a "reasonable likelihood that [Lin] is entitled to relief" because Lin failed to established its authenticity.

Given the heavy burden on a party moving to reopen removal proceedings, the appellate court concluded that the BIA did not abuse its discretion in denying Lin's motion on that basis.

It's important to offer evidence of persecution as early as possible in an immigration appeal. If you're offering evidence for the first time before the BIA, explain how you got it, and verify its authenticity.

Related Resources:

• Gen Lin v. Attorney General USA (Third Circuit Court of Appeals)
• Post-Departure Bars and Legal Double-Standards (FindLaw's Third Circuit Blog)
• Petitioner Bound To Attorney Admissions in Removal Proceeding (FindLaw's Third Circuit Blog)