Bin Chen v. Loretta E. Lynch , 628 F. App'x 966 ( 2015 )

FILED
NOT FOR PUBLICATION
OCT 27 2015
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BIN CHEN, No. 12-71367
Petitioner, Agency No. A087-807-593
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 23, 2015**
Pasadena, California
Before: KOZINSKI, IKUTA and OWENS, Circuit Judges.
The Board of Immigration Appeals (BIA) correctly affirmed the
immigration judge’s adverse credibility determination. The BIA provided four
justifications for its decision. First, the BIA concluded that the immigration
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
page 2
judge’s finding that Chen provided inconsistent answers when asked about how his
wife procured a document from the family-planning office was not clearly
erroneous. That finding was supported by the record. Chen originally said that his
wife sent the village cadre to retrieve the document. But, when pressed by the
immigration judge, Chen said that his wife went with the cadre. In addition to
conflicting with his prior testimony, Chen’s statement that his wife voluntarily
went to the family-planning office is difficult to square with his claim that his
family was hiding from the family-planning officials.
Second, the BIA held that the immigration judge didn’t clearly err in finding
that Chen gave conflicting answers when asked whether he was consistently in
hiding from 2003 to 2008. This finding was also supported by the record. Chen
first stated that he was in hiding constantly between 2003 and 2008, but later said
that he sometimes went home during that period.
Third, Chen suggested that his children attended school while the family was
in hiding. The BIA correctly affirmed the immigration judge’s finding that this
account was both improbable and inconsistent with a letter from Chen’s wife.
Fourth, Chen failed to mention in his application for asylum that he had been
in hiding from 2003 to 2008. The BIA was right to note that this omission
undermines Chen’s credibility, especially in light of his wife’s claim that this
page 3
episode of hiding was the reason that Chen left China.
The adverse credibility determination was supported by substantial evidence.
Given the absence of credible testimony, Chen cannot satisfy his burden of proving
that he is eligible for asylum or withholding of removal. Kin v. Holder, 595 F.3d
1050, 1058 (9th Cir. 2010). Chen’s claim under the CAT is based on the same
testimony that the agency found not credible. Chen doesn’t argue that any other
objective evidence establishes that he will be tortured if he is removed to China.
Thus, the BIA’s rejection of Chen’s claim under the CAT was supported by
substantial evidence. See Shrestha v. Holder, 590 F.3d 1034, 1048 (9th Cir. 2010).
PETITION DENIED.