Fang Chen v. Holder , 365 F. App'x 544 ( 2010 )

Case: 08-60291 Document: 00511013488 Page: 1 Date Filed: 01/27/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 27, 2010
No. 08-60291
Summary Calendar Charles R. Fulbruge III
Clerk
FANG CHEN,
Petitioner
v.
ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A00 040 170
Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Fang Chen, a Chinese national, seeks review of the Board of Immigration
Appeals’ final order of removal. That order dismissed her appeal of the
immigration judge’s denial of Chen’s applications for asylum and withholding of
removal. Chen argues that the IJ’s adverse credibility finding is not supported
by the record. Because Chen filed her application for relief in December 2005,
this case is governed by the standards of the REAL ID Act for evaluating witness
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
Case: 08-60291 Document: 00511013488 Page: 2 Date Filed: 01/27/2010
No. 08-60291
credibility in asylum and withholding of removal cases.1 Although Chen applied
for relief under the Convention Against Torture, she has waived that claim by
failing to brief the issue before this court.2
We defer “to an IJ’s credibility determination unless, from the totality of
the circumstances, it is plain that no reasonable fact-finder could make such an
adverse credibility ruling.”3 In making his adverse credibility finding, the IJ
noted, among other things, that: (1) Chen’s husband moved to the United States
in 2001, despite her claim that they wanted to have more children at that time;
(2) the forced insertion and continued use of an intrauterine device (IUD)
constituted a major element in Chen’s asylum claim, but she had not yet
removed the IUD at the time of her asylum hearing; (3) her claim that the 2005
flood in China prevented her from submitting additional corroborating evidence
did not explain why she did not submit affidavits from her family members and
friends; and (4) there were many inconsistencies between Chen’s testimony at
the asylum hearing and the information contained in the Form I-213 that was
completed by a border patrol agent shortly after Chen’s arrival in the United
States. Our review of the record and Chen’s arguments shows that the IJ’s
adverse credibility finding warrants deference.4 Although we are not convinced
that all cited inconsistencies were in fact inconsistent, we need not be, as the IJ’s
determination rested on an abundance of evidence that precludes us from saying
“no reasonable fact-finder could make such an adverse credibility ruling.”5
1
See 8 U.S.C. § 1158(b)(1)(B)(ii), (iii); 8 U.S.C. § 1231(b)(3)(C); REAL ID Act § 101(h)(2),
Pub. L. 109-13, 119 Stat. 302, 305.
2
See Thuri v. Ashcroft, 380 F.3d 788, 793 (5th Cir. 2004).
3
Wang v. Holder, 569 F.3d 531, 538–39 (5th Cir. 2009) (quoting
4
See id.
5
See id.
2
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No. 08-60291
Because Chen’s testimony was the primary evidence offered in support of
her asylum claim, and the IJ found that testimony less than completely credible,
she has not shown that her evidence was “so compelling that no reasonable
factfinder could fail to find the requisite fear of persecution.” 6 Because her
asylum claim does not warrant relief, her claim for withholding of removal also
fails.7
Chen’s petition for review is DENIED.
6
Jukic v. INS, 40 F.3d 747, 749 (5th Cir. 1994) (internal quotation marks and citation
omitted); see also 8 U.S.C. § 1158(b)(1)(B)(ii) (specifying criteria allowing petitioner’s credible
testimony to constitute sole support for sustaining burden of proving eligibility for asylum).
7
See Eduard v. Ashcroft, 379 F.3d 182, 186 n.2 (5th Cir. 2004).
3