Yi Xing Chen v. Holder , 312 F. App'x 694 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 4, 2009
No. 08-60518
Summary Calendar Charles R. Fulbruge III
Clerk
YI XING CHEN, also known as Yi Ling Chen, also known as Xing Chen Yi
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. A98 499 687
Before DAVIS, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Yi Xing Chen, a citizen of the People’s Republic of China, has petitioned
for review of the decision of the Board of Immigration Appeals (BIA) dismissing
his appeal from the denial by the immigration judge (IJ) of his application for
asylum. Chen contended, before the IJ, that he had a well-founded fear of future
persecution because of his conversion while in the United States to the practice
of the Christian religion. The IJ found Chen’s testimony credible and his fear
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
No. 08-60518
genuine and, thus, subjectively reasonable. However, the IJ nonetheless
determined that Chen’s fear of future persecution was not objectively reasonable.
In general, this court reviews only the decisions of the BIA, except where
the IJ’s findings affect the BIA’s decision, in which case the IJ’s findings are also
reviewed. Efe v. Ashcroft, 293 F.3d 899, 903 (5th Cir. 2002). “[T]his [c]ourt must
affirm the decision if there is no error of law and if reasonable, substantial, and
probative evidence on the record, considered as a whole, supports the decision’s
factual findings.” Moin v. Ashcroft, 335 F.3d 415, 418 (5th Cir. 2003). Under
this standard, “the alien must show that the evidence was so compelling that no
reasonable factfinder could conclude against it.” Chun v. INS, 40 F.3d 76, 78
(5th Cir. 1994); see 8 U.S.C. § 1252(b)(4)(B).
We do not have jurisdiction to consider Chen’s unexhausted arguments
that the IJ erred in denying his motion for change of venue and that the denial
of that motion prevented him from calling witnesses to show that he had
converted to and was practicing Christianity, rendered his hearing unfair, and
caused him to have ineffective assistance of counsel because his counsel did not
speak his dialect of the Chinese language. See Roy v. Ashcroft, 389 F.3d 132, 137
(5th Cir. 2004); Goonsuwan v. Ashcroft, 252 F.3d 383, 390 (5th Cir. 2001). Thus,
we dismiss his petition with respect to his claims regarding venue.
Chen’s remaining arguments are that his application for asylum was
supported by substantial evidence and that the BIA erred in deferring to the IJ’s
factual findings. Specifically, Chen argues that because he is illiterate and a
follower of Christ, it is likely that he will end up in an unregistered church in
China and therefore that he will be persecuted because of his faith. As Chen has
not challenged the denial of his requests for withholding of removal, protection
under CAT, and voluntary departure, any such challenge is abandoned.
See Rodriguez v. INS, 9 F.3d 408, 414 n.15 (5th Cir. 1993).
In a case similar to this case, we concluded that it was not necessary to
resolve the debate about which church, registered or unregistered, a Chinese
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No. 08-60518
Christian would attend in China because the evidence did not compel a finding
of future persecution in either case. See Chen v. Gonzales, 470 F.3d 1131, 1136-
38 (5th Cir. 2006). For similar reasons, Chen has not shown in this case “that
the evidence was so compelling that no reasonable factfinder could conclude
against it.” See Chen, 470 F.3d at 1136-38; Chun, 40 F.3d at 78. Chen’s petition
for review of his asylum claim is denied.
DISMISSED IN PART; DENIED IN PART.
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