Long Chen v. Eric Holder, Jr.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0710n.06
FILED
No. 10-3393
Oct 12, 2011
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
LONG CHEN, )
)
Petitioner, )
) ON PETITION FOR REVIEW
v. ) FROM A FINAL ORDER OF THE
) BOARD OF IMMIGRATION
ERIC H. HOLDER, JR., Attorney General, ) APPEALS
)
Respondent. )
Before: MARTIN, MOORE, and COOK, Circuit Judges.
BOYCE F. MARTIN, JR. Long Chen, a citizen of China, petitions through counsel for
review of an order of the Board of Immigration Appeals (BIA) dismissing his appeal from a decision
of an immigration judge (IJ) denying his applications for asylum, withholding of removal, and
protection under the Convention Against Torture.
Chen was born in China in 1982. He entered the United States in 2006 without inspection
and was subsequently placed in removal proceedings. He applied for the above relief on the basis
of his Christian religion, arguing that he feared persecution if he were returned to China.
At a hearing held before the IJ, Chen testified that his father was sought by the authorities
because of his Christian proselytizing, causing him to go into hiding. The authorities threatened to
arrest Chen if he did not reveal his father’s whereabouts. Chen therefore left his family home to live
with an aunt about two hours away. He lived there for a few years without problem, while
continuing to practice his religion. His family eventually convinced the authorities that Chen’s father
had been killed in a fishing accident, and they were left alone. Chen’s parents paid to have him
smuggled to the United States. His journey included stops in Hong Kong, France, Cuba, Haiti, the
Dominican Republic, and the Bahamas.
No. 10-3393
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The IJ found that Chen was not credible, and that he had not proven that he filed his asylum
application within one year of his entry into the country. Moreover, the IJ found that even if Chen’s
application were timely and his testimony deemed credible, he had not established that he was likely
to be persecuted on the basis of his religion if he returned to China. All relief was therefore denied.
On appeal, the BIA rejected the IJ’s adverse credibility finding but otherwise upheld the decision
below.
Chen now challenges the finding that his asylum application was untimely. We have
jurisdiction to review a determination on the timeliness of an asylum application only when a
constitutional issue or one of statutory construction is involved. Almuhtaseb v. Gonzales, 453 F.3d
743, 748 (6th Cir. 2006). Chen compares his case to that of Gjyzi v. Ashcroft, 386 F.3d 710, 714 (6th
Cir. 2004), where the BIA rejected the IJ’s adverse credibility determination but nevertheless
disregarded the petitioner’s testimony regarding the date of entry, which raised a due process issue.
We need not reach this issue, however, because the IJ and BIA alternatively, and properly, rejected
Chen’s asylum claim on the merits.
We must uphold a decision denying asylum if it is “supported by reasonable, substantial, and
probative evidence.” INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992) (quoting 8 U.S.C.
§ 1105a(a)(4)). Thus, we may grant a petition for review only if a “reasonable factfinder would have
to conclude that the requisite fear of persecution existed.” Id. In this case, the record does not
compel a finding that Chen has a well-founded fear of persecution. In fact, he admitted that the rest
of his family, including his mother and the aunt with whom he lived for a few years, continue to live
in China and practice their Christian religion without interference from the authorities. Therefore,
it is reasonable to assume that Chen could do the same. See Pascual v. Mukasey, 514 F.3d 483, 489
(6th Cir. 2007). Because Chen failed to establish eligibility for asylum, he necessarily cannot meet
the higher burden of showing eligibility for withholding of removal. Kaba v. Mukasey, 546 F.3d
741, 751 (6th Cir. 2008). Similarly, he did not show that it is more likely than not that he would be
tortured, in order to be entitled to protection under the Convention Against Torture.
Accordingly, the petition for review is denied.