Jing Hui Chen v. U.S. Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
November 16, 2005
No. 05-11753 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA Agency No. A96-021-554
JING HUI CHEN,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(November 16, 2005)
Before BLACK, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Jing Hui Chen, a native and citizen of China, petitions for review of the final
order by the Board of Immigration Appeals (“BIA”) adopting and affirming the
immigration judge’s (“IJ’s”) final order denying asylum and withholding of
removal under the Immigration and Nationality Act (“INA”), and denying relief
under the United Nations Convention Against Torture (“CAT”). On appeal, Chen
argues that the IJ denied him his due process rights to a full and fair hearing by not
providing required oral advice and that the IJ abused his discretion by denying
Chen’s motion for change of venue. In addition, Chen argues that the evidence
does not support the IJ’s adverse credibility findings, and that there was substantial
evidence from which to find that Chen was eligible for asylum, withholding of
removal, and relief under the CAT. We deny his petition.
I.
Chen claims that the IJ failed to satisfy the procedural requirements of his
immigration proceedings by not giving him certain oral advice. This is essentially
a due process claim. We review constitutional claims de novo. Lonyem v. U. S.
Attorney Gen., 352 F.3d 1338, 1341 (11th Cir. 2003) (reviewing an alien’s motion
to reopen his in absentia removal hearing). We held in Lonyem that “[t]o establish
due process violations in removal proceedings, aliens must show that they were
deprived of liberty without due process of law, and that the asserted errors caused
them substantial prejudice.” Id. at 1341-42; see also Gonzalez-Oropeza v. United
States Attorney Gen., 321 F.3d 1331, 1333 (11th Cir. 2003). To establish
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substantial prejudice a claimant is required to show that the result would have been
different. See Patel v. U. S. Attorney Gen., 334 F.3d 1259, 1263 (11th Cir. 2003);
Ibrahim v. INS, 821 F.2d 1547, 1550 (11th Cir. 1987).
Chen has failed to show that he was substantially prejudiced as a result of
any error. The IJ did inform Chen as to the removability charges against him in
non-technical language at his first appearance. Chen also argues that the IJ did not
ask for his plea, but Chen conceded that he was removable in his motion for
change of venue. As to other advice, Chen was represented by counsel, who did
not object to the failure to give it. More importantly, Chen does not argue that the
outcome of his removal hearing would have been different if the advice had been
given. Therefore, Chen has not shown that he was substantially prejudiced, and his
due process claim fails. See Patel, 334 F.3d at 1263.
II.
Chen also argues that the IJ abused his discretion in denying his motion to
change venue. An immigration judge may change venue for “good cause” upon
motion by one of the parties. 8 C.F.R. § 1003.20(b). “In determining whether to
grant [a change of venue] motion, an immigration judge usually considers such
factors as, inter alia, administrative convenience, expeditious treatment of the case,
the location of the witnesses, and the costs of transporting witnesses or evidence to
a new situs.” Matter of Velasquez, 19 I&N Dec. 377, 382-83 (BIA 1986).
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Chen’s only statements to support his motion were that he was living in New
York and that he and the witnesses would suffer undue hardship if the hearing was
held in Miami. He never explained what witnesses he had or what testimony they
might give. Chen was also able to obtain local counsel in Florida. The IJ found
that Chen had presented no evidence to overcome the district director’s choice of
venue.
Because Chen has failed to show that there was good cause for a change in
venue, the IJ did not abuse his discretion when he denied Chen’s motion.
III.
Chen argues that the BIA’s and IJ’s adverse credibility determination is not
supported by the evidence and that he established eligibility for asylum based on
past persecution because of his wife’s forced sterilization and a well-founded fear
of persecution because of his Falun Gong membership. When the BIA issues a
decision, we review only that decision, “except to the extent that it expressly
adopts the IJ’s opinion.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.
2001). “Insofar as the Board adopts the IJ’s reasoning, [this Court] review[s] the
IJ’s decision as well.” Id. In this case, the BIA expressly adopted the IJ’s decision
with regard to the denial of Chen’s claims for asylum, withholding of removal
under the INA, and protection under the CAT. Accordingly, we have considered
the IJ’s decision as well as the BIA’s opinion.
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To the extent that the decisions of the BIA and IJ were based on a legal
determination, we review de novo. D-Muhumed v. U.S. Attorney Gen., 388 F.3d
814, 817 (11th Cir. 2004). We review factual determinations under the substantial
evidence test and “must affirm the BIA’s [and IJ’s] decision if it is supported by
reasonable, substantial, and probative evidence on the record considered as a
whole.” Al Najjar, 257 F.3d at 1283-84 (quotation omitted). A finding of fact will
be reversed “only when the record compels a reversal; the mere fact that the record
may support a contrary conclusion is not enough to justify a reversal.” Adefemi v.
Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004), cert. denied, 125 S. Ct. 2245(2005).
An alien who arrives in, or is present in, the United States may apply for
asylum. INA § 208(a)(1), 8 U.S.C. § 1158(a)(1).1 The Secretary of Homeland
Security or the Attorney General has discretion to grant asylum if the alien meets
the INA’s definition of a “refugee.” INA § 208(b)(1), 8 U.S.C. § 1158(b)(1). A
“refugee” is defined as:
any person who is outside any country of such person’s
nationality . . . and who is unable or unwilling to return to, and is
1
Amendments to this section by § 101(a)(3) of the REAL ID Act of 2005, Pub. L. 109-13,
119 Stat. 231, 303, do not apply to this petition because the final order in this case was entered on
March 1, 2005, before § 101(a)(3) took effect in May 2005. See The REAL ID Act § 101(h)(2), 119
Stat. at 305.
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unable or unwilling to avail himself or herself of the protection of,
that country because of persecution or a well-founded fear of
persecution on account of race, religion, nationality, membership in a
particular social group, or political opinion . . . .
INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). The asylum applicant has the
burden of proving “refugee” status. D-Muhumed, 388 F.3d at 818.
To establish asylum eligibility, the petitioner must, with specific and
credible evidence, demonstrate (1) past persecution on account of a statutorily
listed factor, or (2) a “well-founded fear” that the statutorily listed factor will cause
future persecution. 8 C.F.R. § 208.13(a), (b); Al Najjar, 257 F.3d at 1287. “The
testimony of the applicant, if credible, may be sufficient to sustain the burden of
proof without corroboration.” 8 C.F.R. § 208.13(a). The IJ is entitled to require
corroboration where he provides cogent reasons for an adverse credibility finding,
and that finding is supported by substantial evidence. See D-Muhumed, 388 F.3d
at 818-19.
A credibility determination,2 like other factual findings, is reviewed under
the substantial evidence test. D-Muhumed, 388 F.3d at 818. An adverse
2
The REAL ID Act of 2005 amended the law regarding credibility determinations by adding
INA §§ 208(b)(3)(B)(iii), 240(c)(4)(C), 8 U.S.C. §§ 1158(b)(3)(B)(iii), 1229a(c)(4)(C). Section
101(a)(3) and (d), Pub. L. No. 109-13, 119 Stat. 231, 303, 304-05. The Act states, however, that
these provisions “shall apply to applications for asylum, withholding, or other relief from removal
made on or after” the date of enactment of the act, May 11, 2005. Pub. L. No. 109-13, 119 Stat. at
305. Therefore, because Chen’s application for asylum was filed before May 11, 2005, these
provisions do not apply in this case.
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credibility determination alone may be sufficient to support the denial of an asylum
application, so long as the IJ offers “specific, cogent reasons for an adverse
credibility finding” and does not overlook other evidence produced by the asylum
applicant. Forgue v. U.S. Attorney Gen., 401 F.3d 1282, 1287 (11th Cir. 2005).
“Once an adverse credibility finding is made, the burden is on the applicant alien to
show that the IJ’s credibility decision was not supported by specific, cogent
reasons or was not based on substantial evidence.” Id. (quotations and citations
omitted).
The IJ noted several inconsistencies in Chen’s statements: (1) he failed to
mention the forced sterilization at both his initial interview and credible fear
hearing, (2) he did not provide testimony about his participation in Falun Gong,
and (3) he did not know the countries through which he traveled on his way to the
United States. Chen’s response to the IJ’s findings regarding his failures to
mention the forced sterilization and to provide testimony about his participation in
Falun Gong is that he was not asked the right questions. Chen also notes his lack
of education and the fact that he was extremely nervous when answering the
questions. Chen’s explanations do not satisfy his burden of producing specific and
credible evidence to show that the IJ’s adverse credibility determination is not
supported by substantial evidence.
In response to this adverse credibility determination, Chen was unable to
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offer sufficient corroborative evidence to demonstrate that he is a refugee. Chen’s
only testimony concerning Falun Gong was that “Falun Gong teach us Jing, Xu,
Ru. Translate, Jing [] means truthfulness. Xu means kindness, Ru means tireless.”
The only document supplied regarding Falun Gong was provided by the
government. Chen’s only evidence of his wife’s forced sterilization was a
certificate showing that his wife had “female sterilization surgery.” There was no
indication on the certificate that it was forced or mandated by the government.
Accordingly, Chen has not met his burden of proof.
The IJ presented specific, cogent reasons for his adverse credibility finding
and these reasons are supported by substantial evidence in the record. Chen has
not responded with sufficient corroborative evidence to prove that he is a refugee.
Therefore, because Chen failed to provide specific and credible evidence
demonstrating past persecution or a well-founded fear of future persecution,
substantial evidence supports the BIA’s and IJ’s conclusion that Chen failed to
meet his burden of proof to establish his eligibility for asylum. Nothing in the
record compels us to reverse this finding.
IV.
Chen also argues that he is eligible for withholding of removal and CAT
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relief.3 The burden of proof for an applicant for withholding of removal under the
INA and CAT relief is higher than the burden imposed on an asylum applicant. Al
Najjar, 257 F.3d at 1292–93, 1303-04; see also Forgue v. U.S. Attorney Gen., 401
F.3d 1282, 1288 n.4 (11th Cir. 2005 ). Accordingly, because we affirm the BIA’s
conclusion that Chen failed to establish a well-founded fear of persecution in order
to be entitled to asylum, we also affirm the denial of withholding of removal and
CAT relief.
PETITION DENIED.
3
The government argues that this Court lacks jurisdiction to consider the CAT claim because
Chen did not raise this issue on appeal to the BIA and, therefore, did not exhaust his administrative
remedies. Although Chen failed to raise the issue in his notice of appeal to the BIA, Chen stated in
his brief in support of appeal that the “IJ erred in the January 15, 2004 decision denying his claim
for political asylum, for withholding of removal under Section 241(b)(3) of the [INA] and relief
under the Convention against Torture.”
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