Yong Lin Chen v. Holder , 328 F. App'x 968 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 15, 2009
No. 08-60460
Summary Calendar Charles R. Fulbruge III
Clerk
YONG LIN 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. A98 900 596
Before DAVIS, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Yong Lin Chen, a native and citizen of the People’s Republic of China,
petitions for review of the decision issued by the Board of Immigration Appeals
(BIA) dismissing his applications for asylum, withholding of removal, and
protection under the Convention Against Torture (CAT). Chen contends that the
BIA misapplied the law in its decision determining that his asylum application
was untimely filed. He asserts that the birth of his second child constituted a
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-60460
change in circumstances affecting his eligibility for asylum and that he promptly
filed his application thereafter.
Under 8 U.S.C. § 1158, an alien seeking asylum must file an application
for asylum within one year of his arrival in the United States, absent a showing
of “changed circumstances which materially affect the applicant’s eligibility for
asylum or extraordinary circumstances relating to the delay in filing an
application within the [one-year] period.” § 1158(a)(2)(B), (D). Section
1158(a)(3) provides that “[n]o court shall have jurisdiction to review any
determination of the Attorney General under paragraph (2).” § 1158(a)(3); Zhu
v. Ashcroft, 382 F.3d 521, 527 (5th Cir. 2004). Under the Real ID Act, none of
the Immigration and Nationality Act’s jurisdiction-stripping provisions “‘shall
be construed as precluding review of constitutional claims or questions of law
raised upon a petition for review filed with an appropriate court of appeals.’”
Rosales v. Bureau of Immigration & Customs Enforcement, 426 F.3d 733, 736
(5th Cir. 2005) (quoting 8 U.S.C. § 1252(b)(2)(D) (2005)).
The BIA affirmed the immigration judge’s decision finding that Chen had
failed to file his asylum application within one year following his arrival in the
United States or show that he was subject to any exception to the filing deadline.
As both of these determinations involved questions of fact, this court lacks
jurisdiction to consider Chen’s claim for asylum. See Arif v. Mukasey, 509 F.3d
677, 680 (5th Cir. 2007); Zhu v. Gonzales, 493 F.3d 588, 594-95 (5th Cir. 2007).
Chen also contends that the BIA erred in upholding the immigration
judge’s adverse credibility determination. He asserts that he provided credible
and detailed testimony proving that he has a well-founded fear of future
persecution if he returns to China.
The immigration judge provided cogent reasons for finding that Chen was
not credible, and those reasons are amply supported by the record. See Chun v.
INS, 40 F.3d 76, 78 (5th Cir. 1994). As such, without credible evidence, the BIA
had no basis upon which to grant Chen relief. See id. at 79. Accordingly, Chen’s
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No. 08-60460
petition for review is DENIED in part and is DISMISSED in part for lack of
jurisdiction.
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