Fa Chen v. Eric Holder, Jr. , 507 F. App'x 518 ( 2012 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a1248n.06
No. 11-4332
FILED
UNITED STATES COURT OF APPEALS Dec 05, 2012
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
FA JIN CHEN, )
)
Petitioner, )
) ON PETITION FOR REVIEW
v. ) FROM THE UNITED STATES
) BOARD OF IMMIGRATION
ERIC H. HOLDER, JR., Attorney General, ) APPEALS
)
Respondent. )
)
BEFORE: KETHLEDGE and WHITE, Circuit Judges; LUDINGTON, District Judge.*
PER CURIAM. Fa Jin Chen, a native and citizen of China, petitions for review of an order
of the Board of Immigration Appeals denying his motion to reopen or reconsider a decision denying
his claims for asylum, withholding of removal, and protection under the Convention Against Torture
(CAT). The parties waived oral argument, and this panel unanimously agrees that oral argument is
not needed. Fed. R. App. P. 34(a).
Chen entered this country in 2008 and affirmatively applied for asylum, withholding of
removal, and protection under the CAT. He claimed that he had been arrested, beaten, and fined by
Chinese authorities for attending a Christian Bible study group. Shortly after Chen applied for relief,
an immigration officer served him with a notice to appear, charging him as being removable as an
alien present in the United States without being admitted or paroled, or who arrived in the United
*
The Honorable Thomas L. Ludington, United States District Judge for the Eastern District
of Michigan, sitting by designation.
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Chen v. Holder
States at any time or place other than as designated by the attorney general, pursuant to section
212(a)(6)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(A)(i). After a hearing,
an immigration judge (IJ) found Chen removable as charged and denied relief based on the
conclusion that he was not a credible witness and, alternatively, he had not met his burden to
establish eligibility for the relief sought. With respect to the adverse credibility finding, the IJ noted
that Chen’s testimony differed from his documentary evidence on several important issues, including
the description of the Bible study group, the date and location of his arrest, whether he was
hospitalized for a burn allegedly inflicted by the police and for how long, and how and when he
received the hospital records that he submitted in support of his claim. The Board of Immigration
Appeals (BIA) dismissed Chen’s appeal. The BIA held that the IJ committed no clear error in
determining that Chen lacked credibility but did not reach, and thus did not affirm, the IJ’s
alternative conclusion that Chen failed to establish eligibility for relief.
Chen did not file a petition for review of the BIA’s decision, but he timely moved the BIA
to reopen or reconsider, submitting a new English translation of a letter from his mother that had
been submitted at the original hearing. Chen argued that the first translation had errors that were
now corrected and more closely corroborated some of his testimony, most notably the date of his
alleged arrest and the length of time of his alleged hospitalization. The BIA denied the motion,
finding no basis for reconsideration and noting that a correct translation of the mother’s letter could
have been submitted at the original hearing. Moreover, the BIA found that Chen had not shown a
change in circumstances that would materially affect his claim. In declining to sua sponte reopen
or reconsider Chen’s proceeding, the BIA specifically reasoned that, although the new translation
attempted to address one of the reasons that the IJ had concerns with Chen’s testimony, it did not
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Chen v. Holder
address or rebut the “numerous other reasons” the IJ deemed Chen not credible. This petition for
review followed.
We review the denial of a motion to reopen or reconsider for an abuse of discretion. Sako
v. Gonzales, 434 F.3d 857, 863 (6th Cir. 2006); Denko v. INS, 351 F.3d 717, 723 (6th Cir. 2003).
The BIA abuses its discretion when, for example, its decision is without rational explanation, is a
departure from established policy, or is based on impermissible discrimination. Sako, 434 F.3d
at 863.
A motion to reconsider “shall specify the errors of law or fact in the previous order and shall
be supported by pertinent authority.” 8 U.S.C. § 1229a(c)(6)(C); accord 8 C.F.R. § 1003.2(b)(1).
Specifically, “a motion to reconsider . . . only contests the correctness of the original decision based
solely on the previous record.” Rong v. Holder, 367 F. App’x 579, 582 (6th Cir. 2010); see In re
Cerna, 20 I. & N. Dec. 399, 402 (BIA 1991). Here, however, Chen based his motion on
“previous[ly] unavailable evidence,” i.e., the corrected translation of his mother’s letter, in an
attempt to rehabilitate his credibility. The BIA had previously rejected Chen’s argument that the IJ
erred in concluding that he was not a credible witness. Because his motion merely reiterated his
argument on that point and was not based on a change in the law or an allegation that the agency
overlooked facts contained in the prior record or pertinent legal authority, the BIA did not abuse its
discretion in denying reconsideration. See Al-Rawahneh v. INS, 38 F. App’x 271, 276 (6th Cir.
2002).
In contrast to a motion to reconsider, a “motion to reopen shall state the new facts that will
be proven at a hearing to be held if the motion is granted, and shall be supported by affidavits or
other evidentiary material.” 8 U.S.C. § 1229a(c)(7)(B). Under the agency’s implementing
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Chen v. Holder
regulation, “[a] motion to reopen proceedings shall not be granted unless it appears to the Board that
evidence sought to be offered is material and was not available and could not have been discovered
or presented at the former hearing[.]” 8 C.F.R. § 1003.2(c)(1); see Allabani v. Gonzales, 402 F.3d
668, 675–76 (6th Cir. 2005). Here, the corrected translation of Chen’s mother’s letter was not
material because it did not rehabilitate many of the other credibility problems the IJ found with
Chen’s testimony (which he does not challenge), including other record inconsistencies, the lack of
corroborating evidence, and his incomprehensible/unresponsive testimony regarding the source of
his hospital records. See 8 U.S.C. § 1158(b)(1)(B)(iii); Zhao v. Holder, 569 F.3d 238, 247–49 (6th
Cir. 2009); Kaciqi v. Holder, 349 F. App’x 58, 63 (6th Cir. 2009). Moreover, we find no abuse of
discretion in the BIA’s conclusion that a corrected translation could have been presented at the
original hearing. Chen’s present contention that the IJ refused to allow his former counsel, Liu Yu,
to correct the translation by way of amendment is belied by the record. Yu noted a potential
translation error at the original hearing but then failed to file a proper motion to correct the
translation, despite the IJ’s suggestion that he could seek a third-party translator to correct the
translation and the IJ’s expressed willingness to continue the hearing if necessary to correct
translation errors. Further, in the wake of the IJ’s adverse credibility finding and notation in his
decision that Chen’s counsel had failed to properly move to correct the translation, Chen did not
raise the translation-error issue in his original appeal before the BIA or seek to remand the record
to correct the translation errors.
For all of the above reasons, we find no abuse of discretion in the denial of Chen’s motion
to reopen or reconsider. Therefore, we DENY his petition for review.
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