Xia Chen v. U.S. Attorney General , 237 F. App'x 593 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 27, 2007
No. 06-15294 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA No. A79-400-388
XIA CHEN,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(June 27, 2007)
Before BLACK, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Xia Chen, proceeding pro se, seeks review of the Board of Immigration
Appeals’ (“BIA’s”) decision, affirming the Immigration Judge’s (“IJ’s”) order
denying her application for asylum and withholding of removal under the
Immigration and Nationality Act (“INA”), and relief under the United Nations
Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment
or Punishment (“CAT”). We find that we lack jurisdiction to consider Chen’s
claims of persecution on the basis of China’s family-planning policies, and that
substantial evidence supports the IJ’s finding that she was not persecuted for her
participation in Falun Gong activities. Accordingly, the petition is dismissed in
part, and denied in part.
Background
Chen, a native and citizen of China, arrived in the United States on May 22,
2001 and requested asylum at the airport. In a sworn statement submitted at the
airport, she alleged that she had been persecuted on the basis of politics, that
someone had tried to rape her, and that although she reported the incident, her
assailant was not punished. Further, she alleged that she left because she was
afraid that she would be forced to marry someone against her will. At a subsequent
asylum interview, she explained that she was being threatened by a man named
Jin-Xing, a powerful businessman with an uncle who worked for the Chinese
government, because she had refused to marry him. She claimed that he had
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beaten her brother and had attempted to rape her in order to force her to marry him.
At this second interview, she stated that she had never been detained or arrested for
any other reason.
Before the IJ, Chen requested that she be allowed to amend her asylum
application, in light of the fact that she had a child after filing, and would now be
subject to China’s one-child policy. The IJ granted her request. She then testified
that she was from a rural part of Fujian province and that she and her brother were
practitioners of Falun Gong. She claimed that she and her brother were arrested
while meditating with other practitioners. At the police station, the chief of police
demanded that she marry his son, a man named Chen Jian Xing. After she refused,
both she and her brother were beaten. Chen claimed that she was next detained in
a small cell, until Chen Jian Xing took her to an interrogation room and attempted
to rape her. A knock on the door stopped him, and he left, but the chief of police
later returned and threatened to imprison her and her family if she did not agree to
marry his son. She agreed and was released from prison. She alleged that she later
complained to the authorities, but they declined to help her because of Chen Jian
Xing’s family connections.
Chen admitted that she had not testified to these facts in her prior interviews.
However, she claimed that she had not fully understood the questions she was
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asked or why she was being interviewed and had therefore refrained from saying
too much. She also alleged that she wanted another child and that she feared that
she would be prevented from having one if she was returned to China.
The IJ denied Chen’s application, finding that she was not credible because
there were several inconsistencies in the information she provided Further, the IJ
concluded that even if she had been credible, she had not established a nexus
between the alleged events and her Falun Gong membership, as her testimony
established that the threatening policeman was only interested in obtaining her
agreement to marry his son. Additionally, the IJ found that Chen was not entitled
to relief on her family planning persecution claim, since country reports
established that the one child policy was fairly relaxed in the rural areas in which
Chen lived. Chen appealed this decision to the BIA, arguing that the IJ’s
credibility findings were against the weight of the evidence. She claimed that
discrepancies in her testimony were the result of anxiety, and that she had credibly
testified that she would be persecuted because of her Falun Gong activties. The
BIA adopted and affirmed the IJ’s decision, including his credibility finding. Chen
now seeks review of this decision.
Standard of Review
When the BIA issues a decision, we review only that decision, except to the
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extent the BIA expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257 F.3d
1262, 1284 (11th Cir. 2001). We review the IJ and the BIA’s legal determinations
de novo. D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 817 (11th Cir. 2004). The
IJ’s and BIA’s factual determinations are reviewed under the substantial evidence
test, and we “must affirm the BIA’s decision if it is supported by reasonable,
substantial, and probative evidence on the record considered as a whole.” Al
Najjar, 257 F.3d at 1283-84 (quotation marks omitted). Likewise, a credibility
determination is reviewed under the substantial evidence test, and “[we] may not
substitute [our] judgment for that of the BIA with respect to credibility findings.”
D-Muhumed, 388 F.3d at 818.
Discussion
To establish eligibility for asylum, an applicant must demonstrate a well-
founded fear of persecution on account of race, religion, nationality, membership
in a particular social group, or political opinion. 8 U.S.C. § 1101(a)(42)(A). To
qualify for withholding of removal under the INA, an alien must show that it is
more likely than not that, if returned to her country, her life or freedom would be
threatened on account of one of the same protected grounds. 8 U.S.C.
§ 1231(b)(3). Thus, an applicant who is unable to meet the standard for asylum is
also unable to meet the more stringent standard for withholding of removal.
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Huang v. U.S. Att’y Gen., 429 F.3d 1002, 1011 (11th Cir. 2005) (per curiam). For
CAT relief, an applicant must “establish that it is more likely than not that he or
she would be tortured if removed to the proposed country of removal.” Reyes-
Sanchez v. U.S. Att’y. Gen., 369 F.3d 1239, 1242 (11th Cir. 2004) (quoting 8
C.F.R. §208.16(c)(2)).
Before us, Chen argues that the IJ erred in concluding that she was ineligible
for INA or CAT relief on account of China’s family planning policies. However,
in her appeal to the BIA, she challenged only the IJ’s credibility finding insofar as
it related to her Falun Gong persecution claim and did not discuss her separate
family planning claim. Since this claim was not administratively exhausted, we
lack jurisdiction to review it and accordingly dismiss the petition on these grounds.
8 U.S.C. § 1252(d)(1); Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250
(11th Cir. 2006).
Next, Chen argues that the IJ’s ruling on her Falun Gong persecution claim
is not supported by substantial evidence. The IJ based this decision, in part, on his
conclusion that her testimony was not credible. “[A]n adverse credibility
determination alone may be sufficient to support the denial of an asylum
application” when there is no other evidence of persecution. Forgue v. U.S. Att’y
Gen., 401 F.3d 1282, 1287 (11th Cir. 2005) (citations omitted). Indications of
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reliable testimony include consistency on direct examination, consistency with the
written application, and the absence of embellishment as the applicant repeatedly
recounts his story. Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1255 (11th Cir. 2006)
(per curiam); see also Dalide v. U.S. Attorney Gen., 387 F.3d 1335, 1343 (11th Cir.
2004) (affirming the BIA’s adverse credibility determination, which was based
upon its finding that the applicant’s testimony conflicted with his answers to
interrogatories, affidavit, deposition, and other documentary evidence).
Here, there were several material inconsistencies in Chen’s testimony before
the IJ and her earlier interviews, namely (1) her failure to mention her Falun Gong
membership prior to the hearing before the IJ; (2) her earlier statement that she had
never been arrested or detained, as compared to her later assertion that she was
arrested while meditating; (3) her initial statement that only her brother was beaten,
and her later testimony that she was beaten as well; and (4) inconsistencies in the
name of the man who threatened her and his relationship with government
officials. As such, there is substantial evidence supporting the IJ’s adverse
credibility finding. Further, although Chen presented country reports documenting
the treatment of Falun Gong members generally, she presented no evidence beyond
her incredible testimony that she was persecuted. See Forgue, 401 F.3d at 1287
(noting that an adverse credibility determination does not alleviate the IJ’s duty to
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consider other evidence produced by the asylum applicant). Thus, we cannot say
that the IJ erred in finding that Chen failed to demonstrate eligibility for INA or
CAT relief. Accordingly, we dismiss the petition in part, and deny the petition in
part.
PETITION DISMISSED IN PART, DENIED IN PART
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