Lihua Chen v. Jefferson Sessions ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 27 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LIHUA CHEN, No. 14-70359
Petitioner, Agency No. A200-575-456
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 12, 2018**
Honolulu, Hawaii
Before: TASHIMA, W. FLETCHER, and HURWITZ, Circuit Judges.
Lihua Chen is a native and citizen of China. He petitions for review of a Board
of Immigration Appeals (BIA) decision dismissing his appeal of an order by an
Immigration Judge (IJ) denying his applications for asylum, withholding of removal,
and protection under the Convention Against Torture (CAT). We have jurisdiction
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
under 8 U.S.C. § 1252(a) and deny the petition for review.
1. An application for asylum is untimely if not filed within one year of an
alien’s arrival in the United States. 8 U.S.C. § 1158(a)(2)(B). Chen arrived in Guam
in April 2009 and filed his asylum application in July 2011. His late filing can be
excused if there are “extraordinary circumstances relating to the delay in filing.” 8
U.S.C. § 1158(a)(2)(D). If extraordinary circumstances are established, Chen also
“must then demonstrate that the asylum application was filed within a ‘reasonable
period given those circumstances.’” Al Ramahi v. Holder, 725 F.3d 1133, 1135 (9th
Cir. 2013) (quoting 8 C.F.R. § 1208.4(a)(5)).
Substantial evidence supports the BIA’s conclusion that Chen “did not
establish that he filed his asylum application within a reasonable period under the
circumstances.” Chen’s reliance on representations from his employer that his
original status would be extended was not reasonable after April 2010, when the
employer’s extension request was denied. Chen’s passport stated that his work status
expired in October 2009, and a preamble to the regulation in place at the time, Singh
v. Holder, 656 F.3d 1047, 1056 (9th Cir. 2011), cautioned that “waiting six months
or longer after expiration or termination of status would not be considered
reasonable.” Asylum Procedures, 65 Fed. Reg. 76121, 76124 (Dec. 6, 2000).
2. The BIA’s affirmance of the IJ’s adverse credibility determinations was
supported by substantial evidence. Under the REAL ID Act of 2005, an “IJ may base
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an adverse credibility determination on any relevant factor that, considered in light
of the totality of the circumstances, can reasonably be said to have a ‘bearing on a
petitioner’s veracity.’” Ren v. Holder, 648 F.3d 1079, 1084 (9th Cir. 2011) (quoting
Shrestha v. Holder, 590 F.3d 1034, 1044 (9th Cir. 2010)). The BIA accurately noted
that although Chen had testified “that he was present and had a confrontation with
officials when they took his wife away during her third pregnancy, his written
statement did not state that he encountered family officials at that time.” Indeed,
although Chen testified that he engaged “in a physical fight” and “was handcuffed”
when family planning officials came to take his wife for her second abortion, his
written statement makes no mention of any such incident. His written statement only
describes a “physical confrontation” with government officials before his wife’s first
abortion. This discrepancy, which goes to the heart of Chen’s persecution claim,
provides substantial evidence for the adverse credibility finding. Wang v. INS, 352
F.3d 1250, 1259 (9th Cir. 2003) (stating that as “long as one of the identified grounds
is supported by substantial evidence . . . we are bound to accept the IJ’s adverse
credibility finding”); see also Shrestha, 590 F.3d at 1046–47 (“Although
inconsistencies no longer need to go to the heart of the petitioner’s claim, when an
inconsistency is at the heart of the claim it doubtless is of great weight.”).1
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Substantial evidence also supports the BIA’s finding of several other
discrepancies between Chen’s asylum application, his written statement, and his
hearing testimony. Chen’s application conflicted with his later testimony about the
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3. The BIA also did not err in concluding that, even if Chen’s asylum
application had been timely, it would nonetheless fail because “the documentary
evidence he submitted did not overcome his lack of credibility” or “independently
and credibly prove his claim of past and future persecution.” Chen’s documentary
evidence consisted of a letter from his wife stating that she had had two abortions,
and two country conditions reports. None of these compels a finding of past or future
persecution. See Zetino v. Holder, 622 F.3d 1007, 1012 (9th Cir. 2010) (“The
petition for review may be granted only if the evidence presented was such that a
reasonable factfinder would have to conclude that the requisite fear of persecution
existed.”) (citation and internal quotation marks omitted). Chen’s application for
withholding of removal therefore also necessarily failed. See Fisher v. INS, 79 F.3d
955, 965 (9th Cir. 1996) (en banc) (holding that applicant who “failed to satisfy the
lesser standard of proof required to establish eligibility for asylum . . . necessarily
failed to demonstrate eligibility for withholding of deportation”).
4. The BIA’s rejection of Chen’s CAT application was also based on
substantial evidence. Even assuming his credibility, Chen presented no evidence that
it is “more likely than not” that he will be tortured if he returns to China. 8 C.F.R.
number of his siblings and place of birth, and failed to disclose that he had previously
worked in Guam. “[E]ven minor inconsistencies that have a bearing on a petitioner’s
veracity may constitute the basis for an adverse credibility determination.” Ren, 648
F.3d at 1089.
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§ 1208.16(c)(2).
The petition for review is DENIED.
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