Chao Keng Chen v. Ashcroft

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS December 18, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-60981
Summary Calendar
CHAO KENG CHEN,
Petitioner,
versus
JOHN ASHCROFT, U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A70 891 996
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Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Chao Keng Chen “(“Chen”), a citizen of China, petitions for
review of an order from the Board of Immigration Appeals (“BIA”)
summarily affirming the immigration judge’s (“IJ”) decision to
deny his application for asylum, withholding of removal, or for
relief under the Convention Against Torture. Chen argues that
the IJ made an improper adverse credibility determination and
that the IJ considered impermissible hearsay evidence to support
his finding of adverse credibility. Finally, Chen has filed a
*
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that this opinion should not be published and is not precedent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.
No. 02-60981
-2-
motion requesting this court to remand to the BIA pursuant to 28
U.S.C. § 2347(c) for consideration of additional evidence, or, in
the alternative, to hold his case in abeyance pending the BIA’s
decision on his motion to reopen.
The IJ’s finding that Chen was not credible is a reasonable
interpretation of the record and the conclusion that Chen was
credible is not compelled by the evidence. See Chun v. INS, 40
F.3d 76, 79 (5th Cir. 1994). Because Chen failed to exhaust his
administrative remedies with regard to the hearsay issue, this
court is precluded from addressing it. See Wang v. Ashcroft, 260
F.3d 448, 452 (5th Cir. 2001). Under the Illegal Immigration
Reform and Immigration Responsibility Act (“IIRIRA”) transitional
rules, a court may not order the taking of additional evidence
under § 2347(c). See IIRIRA § 309(c)(4)(B). The court declines
to hold this case in abeyance pending the BIA’s ruling on Chen’s
motion to reopen, as the motion to reopen does not affect the
finality of the deportation order. See Mamoka v. INS, 43 F.3d
184, 187 (5th Cir. 1995).
Accordingly, the petition for review and the motion are
DENIED.