Chen v. Holder, Jr. ( 2011 )

FILED
United States Court of Appeals
Tenth Circuit
June 7, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
YONG CHEN,
Petitioner,
v. No. 10-9562
(Petition for Review)
ERIC H. HOLDER, JR., United States
Attorney General,
Respondent.
ORDER AND JUDGMENT *
Before MATHESON, McKAY and EBEL, Circuit Judges.
Yong Chen petitions for review of a decision by the Board of Immigration
Appeals (BIA or Board) denying his applications for asylum, restriction on
removal, and relief under the Convention Against Torture (CAT). We lack
jurisdiction to consider the determination that Mr. Chen’s asylum application was
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
untimely and dismiss that portion of the petition. See 8 U.S.C. § 1158(a)(3);
Ferry v. Gonzales, 457 F.3d 1117, 1129-30 (10th Cir. 2006). We do, however,
have jurisdiction to consider the restriction-on-removal claim and the CAT claim.
See 8 U.S.C. § 1252(a). We deny the remainder of the petition. The BIA’s
conclusion that Mr. Chen was not credible and provided no corroboration for his
claims and thus failed to satisfy his burden to establish eligibility for the relief he
requested was not “contrary to what a reasonable factfinder would have been
compelled to conclude.” See Diallo v. Gonzales, 447 F.3d 1274, 1283 (10th Cir.
2006).
Background and Testimony
Mr. Chen is a native and citizen of China. He left China in 1998 and went
to Ecuador where he stayed for a few months but left for the United States after
his business failed. He overstayed his six-month visitor’s visa and in 2005 was
placed in removal proceedings. At that time, he told the Immigration Judge (IJ)
that he planned to file an application for asylum. However, he did not actually
file the asylum application until 2008, ten years after his arrival in this country.
Mr. Chen’s asylum request was based on past persecution by Chinese authorities
on account of his Christian faith.
At the hearing before the IJ, Mr. Chen testified that he had been arrested by
Chinese authorities for illegally attending an underground Christian gathering at a
small house church. He was detained for three days during which time he was
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interrogated twice and both times beaten with a baton which left his body
swollen. His family paid for his release. He treated his injuries with ointment. 1
For the following two months he was required to report to the authorities about
his activities, but no problems resulted from the reporting requirement.
Mr. Chen testified that as he moved to various cities in the United States he
would usually find a Chinese Christian church in which to worship, although he
never formally became a member of any church. Despite living for more than a
year in New York City, Mr. Chen could not remember the name of the church he
attended there.
Around May 2007, after he had been placed in removal proceedings,
Mr. Chen mailed some Christian religious materials to a friend in China.
According to his testimony, the Chinese police found the materials and detained
his friend for three or four days. The friend told the police that the materials had
come from Mr Chen, and his mother told him that, because the police knew he
had sent Christian materials to his friend, he was on a police black list and should
not return to China. When asked why he did not procure written confirmation of
these incidents, Mr. Chen responded that he did not have time to take care of the
matter.
1
Because of “indiscernible” testimony at the hearing, Admin. R. at 150, it is
unclear whether Mr. Chen was treated by a doctor after the beatings.
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Cross-examination
With regard to his coming to the United States, Mr. Chen explained that
“[o]riginally I planned to stay in South America because I had a friend there, and
then the business folded, and I had nobody to depend on, so I left South America
and came to United States,” initially “to go to school.” Admin. R. at 163.
Mr. Chen planned to attend school for two or three years in the United States and
then return to China when things calmed down.
When pressed about his lack of corroborative evidence, Mr. Chen stated
that he did not think of gathering evidence before leaving China. He was then
asked why he hadn’t gathered evidence in the ensuing ten years, and his response
is not entirely clear. He replied, “because I didn’t think about using apply for
asylum.” Id. at 167.
The IJ questioned Mr. Chen about sending Christian materials to a friend in
China and asked why he did not recognize the seriousness of such an action.
Despite having testified that he had been arrested in China for, among other
things, having a Bible and being in possession of religious materials, Mr. Chen
insisted that he had not thought of the consequences of sending the religious
tracts and that he did not think that sharing those materials was all that serious.
Immigration Judge’s Decision
After Mr. Chen’s testimony, the IJ, in an oral ruling, denied the asylum
application as untimely. He noted the many years Mr. Chen had been in the
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United States without applying for asylum and despite having employed four
different attorneys during that time. The IJ specifically remarked on the lack of
corroboration, stating:
You have absolutely very little corroboration, if any at all, of
anything you’ve testified to today. You have no statements from
Mr. Wong [the friend in China to whom Mr. Chen mailed Christian
materials], you have no statements from your family. There’s no
evidence you were ever detained. There’s no corroboration evidence
of anything that you’ve said. Quite frankly, I just don’t believe you.
Id. at 173.
The IJ followed his oral ruling with a sixteen-page written decision. He
held that Mr. Chen’s asylum application was untimely and did not qualify for the
exception to the one-year filing deadline for aliens who demonstrate “the
existence of changed circumstances which materially affect the applicant’s
eligibility for asylum or extraordinary circumstances relating to the delay in filing
an application.” See 8 U.S.C. § 1158 (a)(2)(D).
The IJ then identified a number of reasons to support his adverse credibility
determination and ultimately found Mr. Chen had provided testimony that was
“implausible, unbelievable, inconsistent internally, and inconsistent with [his]
application.” Id. at 97. The IJ also determined that Mr. Chen had failed to
provide reasonably available corroborative evidence.
Alternatively, the IJ held that, even if Mr. Chen had testified credibly and
provided corroboration, he had failed to provide facts sufficient to establish past
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persecution or a well founded fear of future persecution. Mr. Chen’s applications
for withholding of removal and protection under the CAT were denied as was his
request for voluntary departure.
BIA Appeal
The BIA dismissed Mr. Chen’s appeal agreeing with the IJ that Mr. Chen
had failed to demonstrate “changed circumstances” sufficient to justify his late
asylum filing. Specifically it found that Mr. Chen’s mailing of religious materials
to a friend in China could not create the changed circumstances upon which he
could argue that his filing was timely. While the BIA agreed with Mr. Chen that
the IJ had engaged in some improper speculation in finding him not credible, the
BIA ultimately held that
considering the totality of the circumstances, and particularly the
inherent implausibility of the respondent’s testimony, the
Immigration Judge’s adverse credibility finding is not clearly
erroneous. The respondent’s assertion that he suffered persecution in
1998 and feared returning to China is contradicted by his plan to
attend school in the United States and then return home.
Id. at 4.
The BIA also agreed that Mr. Chen had failed to provide reasonably
available corroborative evidence. Finally, the Board held that Mr. Chen failed to
establish his eligibility for protection under the CAT.
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Scope and Standards of Review
A single member of the BIA affirmed the IJ’s decision in a brief order. See
8 C.F.R. § 1003.1(e)(5). In these circumstances, “we will not affirm on grounds
raised in the IJ decision unless they are relied upon by the BIA in its affirmance.
But when seeking to understand the grounds provided by the BIA, we are not
precluded from consulting the IJ’s more complete explanation of those same
grounds.” Ismaiel v. Mukasey, 516 F.3d 1198, 1205 (10th Cir. 2008) (quotations
and citation omitted).
We review the BIA’s legal determinations de novo. See Lockett v. INS, 245
F.3d 1126, 1128 (10th Cir. 2001). “The agency’s findings of fact are conclusive
unless the record demonstrates that ‘any reasonable adjudicator would be
compelled to conclude to the contrary.’” Ismaiel, 516 F.3d at 1204-05 (quoting
8 U.S.C. § 1252(b)(4)(B) (further quotation and citation omitted)).
Discussion
On appeal, Mr. Chen argues that, because it presents a question of law, we
have jurisdiction to review the Board’s conclusion that his asylum application was
untimely. With regard to the merits of his appeal, he contends that the BIA erred
in upholding the IJ’s credibility determination and in its further conclusion that he
failed to provide reasonably available corroborative evidence in support of his
claim. Finally, Mr. Chen argues generally that he is entitled to all the relief he
requested.
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1. Asylum claim
Jurisdiction over the timeliness determination
Ordinarily an asylum applicant must apply for asylum relief within one
year after the date of the applicant’s arrival in the United States. 8 U.S.C.
§ 1158(a)(2)(B). An exception to this one-year filing deadline applies if an
applicant “demonstrates to the satisfaction of the Attorney General either the
existence of changed circumstances which materially affect the applicant’s
eligibility for asylum or extraordinary circumstances relating to the delay in
filing.” Id. at § 1158(a)(2)(D). We are generally without jurisdiction to consider
the BIA’s timeliness decision. See 8 U.S.C. § 1158(a)(3) (providing that no court
shall have jurisdiction to review the Attorney General’s determination of changed
circumstances); see also Ferry, 457 F.3d at 1129-30. We do, however, retain
jurisdiction to consider “constitutional claims” and “questions of law.” 8 U.S.C.
§ 1252(a)(2)(D). We have interpreted “questions of law” to cover “a narrow
category of issues regarding statutory construction.” Diallo, 447 F.3d at 1282(internal quotation omitted).
Mr. Chen attempts to fit his argument within this narrow category by
asserting that the BIA “committed legal error by misapplying the plain terms of
the regulations.” Pet’r Br. at 11. This argument has to do with the BIA’s
determination that Mr. Chen’s evidence relating to a recent crackdown on religion
was not relevant to his failure to file a timely asylum application because he
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alleged he suffered persecution in 1998. But the application of law to facts, like
whether certain evidence is relevant to determining whether a particular legal
standard is met, does not present a question of law involving statutory
construction. Mr. Chen’s base argument is that his evidence supports a different
outcome, which is “nothing more than a challenge to the agency’s discretionary
and fact-finding exercises.” Kechkar v. Gonzales, 500 F.3d 1080, 1084 (10th Cir.
2007). As this court has held, an alien may not avoid the jurisdictional bar by
arguing that the “evidence was incorrectly weighed, insufficiently considered, or
supports a different outcome.” Id. This reasoning also holds true for Mr. Chen’s
argument that the BIA committed legal error in concluding that he failed to
establish a relevant change in his personal circumstances.
Accordingly, we lack jurisdiction to consider the BIA’s determination that
Mr. Chen failed to show changed circumstances sufficient to render his asylum
application timely.
2. Restriction on Removal
Adverse credibility determination
Mr. Chen challenges the BIA’s decision to affirm the IJ’s adverse
credibility determination.
Credibility determinations are factual findings . . . subject to
the substantial evidence test. Because an alien’s testimony alone
may support an application for withholding of removal or asylum,
8 C.F.R. § 208.13(a), the IJ must give specific, cogent reasons for
disbelieving it. In formulating those reasons, the trier of fact must
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look to the of the circumstances and all relevant factors. 8 U.S.C.
§ 1158(b)(1)(B)(iii).
Sarr v. Gonzales, 474 F.3d 783, 789 (10th Cir. 2007) (quotations and citations
omitted).
An adverse credibility determination may be based on inconsistencies in the
witness’ testimony, lack of sufficient detail, implausibility, or testimonial
demeanor. Elzour v. Ashcroft, 378 F.3d 1143, 1152-53 (10th Cir. 2004). “We
may not weigh the evidence, and we will not question the immigration judge’s or
BIA’s credibility determinations as long as they are substantially reasonable.”
Woldemeskel v. INS, 257 F.3d 1185, 1192 (10th Cir. 2001).
As mentioned, the BIA held that, while part of the IJ’s credibility finding
was improperly based on speculation, “the totality of the circumstances, and
particularly the inherent implausibility of the respondent’s testimony” rendered
the IJ’s adverse credibility determination not clearly erroneous. Admin. R. at 4.
In particular, the BIA noted that Mr. Chen’s assertion that he suffered persecution
in 1998 and feared returning to China was contradicted by his testimony that he
planned to attend school in the United States and then return home. The BIA also
agreed with the IJ’s determination that it was “unbelievable” that Mr. Chen would
send religious materials to his friend in China without considering “the possible
consequences of his actions, or those of possibly placing his friend in danger.”
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Id. Having conducted our review of the record under the relevant standard, we
conclude that the agency’s credibility findings were substantially reasonable.
Corroboration Requirement
As an alternative ground upon which to dismiss the petition, the BIA held
that, even if Mr. Chen was credible, his claim would still fail because he did not
provide reasonably available evidence to corroborate his claims. Mr. Chen
contends this is error.
The REAL ID Act allows an applicant to rely solely on his or her own
testimony without corroboration but only where “the applicant satisfies the trier
of fact that the applicant’s testimony is credible, is persuasive, and refers to
specific facts sufficient to demonstrate that the applicant is a refugee.” See
8 U.S.C. § 1158(b)(1)(B)(ii). Even when the testimony is “otherwise credible,”
the trier of fact may require corroboration, and the applicant must provide it
“unless the applicant does not have the evidence and cannot reasonably obtain the
evidence.” Id.Mr. Chen had ten years in this country in which to gather corroborative
evidence to support his claim. But, as the BIA noted, Mr. Chen “failed to provide
any corroboration of his alleged past detention and mistreatment, church
attendance in any of the cities where he resided, and most significantly, any
corroboration from the recipient of the religious materials or from his family
members to demonstrate the likelihood that he will suffer future persection.”
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Admin. R. at 4. Although Mr. Chen asserted on appeal to the BIA that
documentation was not reasonably available because he was “blacklisted,” the
BIA noted that assertion conflicted with his testimony at the hearing that he failed
to provide corroborating evidence because he “‘didn’t think about [doing so].’”
Id. (quoting Admin. R. at 167).
Mr. Chen has not demonstrated that a reasonable factfinder would be
compelled to reach a conclusion contrary to the BIA’s decision that there was
reasonably available corroborative evidence and he failed to provide it. See
8 U.S.C. § 1252(b)(4) (“No court shall reverse a determination made by a trier of
fact with respect to the availability of corroborating evidence . . . unless the court
finds . . . that a reasonable trier of fact is compelled to conclude that such
corroborating evidence is unavailable.”).
Convention Against Torture
Having determined that we lack jurisdiction to consider the asylum claim
and that substantial evidence supports the denial of his application for restriction
on removal, we turn to Mr. Chen’s claim that he is eligible for relief under the
Convention Against Torture. See 8 C.F.R. §§ 208.16(c)(2), (4). We do not
address this claim, however, because, in his brief on appeal, Mr. Chen has merely
cited the standard for relief under the CAT and stated that he qualifies for such
relief. This insufficient argument does not warrant appellate review. See Murrell
v. Shalala, 43 F.3d 1388, 1389 n.2 (10th Cir. 1994).
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For the foregoing reasons, the petition for review of the asylum claim is
DISMISSED; the balance of the petition is DENIED.
Entered for the Court
David M. Ebel
Circuit Judge
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