Shaoling Chen v. Eric Holder, Jr. , 573 F. App'x 338 ( 2014 )

Case: 13-60485 Document: 00512667270 Page: 1 Date Filed: 06/17/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-60485
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
June 17, 2014
SHAOLING CHEN,
Lyle W. Cayce
Clerk
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. A087 726 642
Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Shaoling Chen filed an application for asylum in September 2009,
asserting that she was a native and citizen of the People’s Republic of China
who had entered the United States on January 3, 2009. In March 2010, Chen
was charged with removability under 8 U.S.C. § 1182(a)(6)(A)(i) as an alien
who had entered this country without being admitted or paroled. Chen
conceded removability but sought relief in the form of asylum, withholding of
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 13-60485
removal, and protection under the Convention Against Torture (CAT),
asserting that she had suffered past persecution on account of her opposition
to the Chinese government and that she had a well-founded fear of future
persecution on that same ground. The immigration judge (IJ) found that
Chen’s asylum application was frivolous, that she had not shown that the
application had been timely filed, and that she had not shown that she was
eligible for the relief she sought. Accordingly, the IJ denied Chen’s requests
for relief and ordered Chen removed to China. The Board of Immigration
Appeals (BIA) dismissed Chen’s appeal of the IJ’s decision. Chen now petitions
for review of the BIA’s decision.
On a petition for review, this court “review[s] only the BIA’s decision,
unless the IJ’s decision has some impact on” that decision. Orellana-Monson
v. Holder, 685 F.3d 511, 517 (5th Cir. 2012) (internal quotation marks and
citation omitted). We review the BIA’s factual findings under the substantial
evidence standard, and we review legal questions de novo. Rui Yang v. Holder,
664 F.3d 580, 584 (5th Cir. 2011). Under the substantial evidence standard,
the petitioner must show that “the evidence is so compelling that no reasonable
factfinder could reach” a conclusion contrary to that of the BIA. Orellana-
Monson, 685 F.3d at 518 (internal quotation marks and citation omitted).
Chen argues that there was not sufficient evidence in the record to
support a finding of frivolousness. The IJ and the BIA credited the testimony
of Robert Gohl, a forensic document examiner, that the identification card
submitted by Chen was fraudulent. “It is the factfinder’s duty to make
credibility determinations, and this court cannot substitute its judgment for
that of the BIA or IJ with respect to witnesses’ credibility.” Id. Other than her
own assertions that her Chinese identification card is authentic, Chen has
never offered any evidence to refute Gohl’s testimony that the card she
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submitted was fraudulent. Substantial record evidence supports the BIA’s
factual finding that Chen submitted a fraudulent identification card in support
of her asylum application and that the application was therefore frivolous. See
8 C.F.R. § 1208.20; Orellana-Monson, 685 F.3d at 518; Rui Yang, 664 F.3d at
584-85.
Chen also attacks the BIA’s frivolousness determination on three
additional grounds. First, she asserts that Gohl’s report and his testimony
were “introduced for impeachment purpose[s] only” and that Gohl was not
placed under oath. Second, Chen argues that it was not established that she
knowingly filed a frivolous asylum application. Third, Chen argues that the IJ
should not have made a frivolousness determination sua sponte. Chen did not
raise any of these arguments in her brief before the BIA or in a motion for
reconsideration. Accordingly, she has failed to exhaust these issues, and we
lack jurisdiction to consider them. See Omari v. Holder, 562 F.3d 314, 318-21
(5th Cir. 2009).
Chen assigns error to several of the individual findings underpinning the
BIA’s overall conclusion that she had not credibly established her claims for
relief. An adverse credibility determination may be supported by “any
inconsistency or omission . . . as long as the totality of the circumstances
establishes that an asylum applicant is not credible.” Wang v. Holder, 569 F.3d
531, 538 (5th Cir. 2009) (internal quotation marks and citation omitted). In
this case, we need not address each of the individual findings challenged by
Chen because Chen’s submission of a fraudulent identification card and her
insistence that the card was genuine, by itself, supports the BIA’s adverse
credibility determination. Moreover, reviewing the record as a whole, we
conclude that it is not plain that no reasonable factfinder would have made the
same adverse credibility ruling. See Wang, 569 F.3d at 538.
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Overall, the BIA’s decision that Chen was not entitled to asylum because
she had not provided credible evidence of either past persecution or a well-
founded fear of future persecution is supported by substantial evidence. See
Orellana-Monson, 685 F.3d at 518. If an alien has failed to establish the well-
founded fear necessary for an asylum claim, it follows that she necessarily
cannot establish an entitlement to withholding of removal or relief under the
CAT. See Dayo v. Holder, 687 F.3d 653, 658-59 (5th Cir. 2012); Rui Yang, 664
F.3d at 588-89.
Chen also challenges the BIA’s determination that there was a conflict
between her oral testimony, which described Chen’s relationship with a woman
named “Sue C.,” and her asylum statement, which did not mention “Sue C.”
The legal issue asserted by Chen arose from “the BIA’s act of decisionmaking”
and could not have been raised prior to the BIA’s issuance of its decision. See
Omari, 562 F.3d at 320-21. In order to properly exhaust this issue, Chen
should have raised it first in a motion for reconsideration before the BIA. See
id. Because she did not do so, we lack jurisdiction to consider the issue. Id.Finally, Chen argues that the BIA did not make any express findings on
the issue of timeliness and that “it may be assumed that the BIA agreed with”
her position that the application was timely. She reiterates her contention that
she provided sufficient evidence of the timeliness of her asylum application.
Whether Chen met her burden to establish that she filed a timely asylum
application is a factual question that this court lacks jurisdiction to review.
8 U.S.C. § 1158(a)(3); Arif v. Mukasey, 509 F.3d 677, 680 (5th Cir. 2007).
To the extent that Chen challenges the BIA’s determination that her
asylum application was untimely and to the extent that Chen raises arguments
that she failed to exhaust before the BIA, the petition for review is
DISMISSED. In all other respects, Chen’s petition for review is DENIED.
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