Huinan Lin v. Jefferson Sessions

FILED NOT FOR PUBLICATION OCT 26 2017 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT HUINAN LIN, No. 12-74203 Petitioner, Agency No. A088-290-414 v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted October 12, 2017 Honolulu, Hawaii Before: SCHROEDER, D.W. NELSON, and McKEOWN, Circuit Judges. Huinan Lin (“Lin”) petitions for review of the Board of Immigration Appeals’ (“BIA”) denial of her asylum and withholding of removal claim. We have jurisdiction under 8 U.S.C. § 1252, and we grant in part, deny in part, and remand to the BIA. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. We review factual findings, including findings that an alien has failed to establish eligibility for asylum or withholding of removal and adverse credibility findings, for substantial evidence. Singh v. Holder, 753 F.3d 826, 830 (9th Cir. 2014). “Where the BIA issues its own decision but relies in part on the immigration judge’s reasoning, we review both decisions.” Flores-Lopez v. Holder, 685 F.3d 857, 861 (9th Cir. 2012). The BIA’s finding of ineligibility for relief will be reversed only if the evidence “compels” the reversal. Tang v. Gonzales, 489 F.3d 987, 990 (9th Cir. 2007). “Whether an immigration proceeding violates an alien’s due process rights is a purely legal issue and is reviewed de novo.” Hamazaspyan v. Holder, 590 F.3d 744, 747 (9th Cir. 2009) (citation omitted). First, Lin’s opening brief does not specifically challenge or discuss the BIA’s finding that she failed to show a well-founded fear of future persecution in China based on the fact that she has two children, one of whom was born in the United States. Accordingly, Lin has waived any challenge to this finding. See Martinez-Serrano v. I.N.S., 94 F.3d 1256, 1259 (9th Cir. 1996). Lin also argues that using her husband, Huomin Cao’s (“Cao”) asylum application and transcript violated her Fifth Amendment right to a full and fair hearing because she was not given the opportunity to produce Cao’s testimony or 2 to review the materials from his immigration proceedings. However, Lin never presented this claim to the BIA. Further, the error was procedural, given that the IJ could have adjourned the hearing to provide the Petitioner an opportunity to produce her husband’s testimony and to review the evidence the government introduced. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004). Thus, Lin’s due process claim is unexhausted such that the panel lacks jurisdiction to address it. Sola v. Holder, 720 F.3d 1134, 1135 (9th Cir. 2013). Finally, the BIA’s adverse credibility determination was not supported by substantial evidence because the BIA, in adopting the Immigration Judge’s (“IJ”) rationale, used omissions and discrepancies in Cao’s asylum application and testimony in his own immigration proceedings to find Lin not credible. See Bao v. Gonzalez, 460 F.3d 426, 431–32 (2d Cir. ...

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