Yan Chen v. Eric Holder

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0329n.06
No. 10-3144 FILED
May 18, 2011
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT LEONARD GREEN, Clerk
YAN CHEN,
Petitioner,
ON PETITION FOR REVIEW OF
v. AN ORDER OF THE BOARD OF
IMMIGRATION APPEALS
ERIC H. HOLDER, JR., Attorney General,
Respondent.
/
Before: MARTIN and SUTTON, Circuit Judges; GRAHAM, District Judge.*
BOYCE F. MARTIN, JR., Circuit Judge. Petitioner Yan Chen seeks review of an order of
the Board of Immigration Appeals dismissing her appeal. The order affirmed the immigration
judge’s denial of her motion for a continuance, as well as the immigration judge’s denial of asylum,
withholding of removal, and relief under the Convention Against Torture. We AFFIRM the Board’s
order and DENY Chen’s petition for review.
I. BACKGROUND
Chen, a native and citizen of China, applied for admission to the United States at Los
Angeles International Airport on January 28, 2005. On February 2, the Department of Homeland
Security issued her a Notice to Appear. After requesting and receiving a venue change, she appeared
before the immigration judge on March 16. She admitted the truth of the allegations in the Notice
*
The Honorable James L. Graham, United States District Judge for the Southern District of Ohio, sitting by
designation.
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to Appear, conceded removability, and submitted an application for protection under the Convention
Against Torture. Chen claimed that she feared returning to China because her parents were involved
in a failed business and owed debts to people with connections to the government. She claimed that
her parents had been detained for two weeks and that her family had been threatened.
After requesting and receiving two additional venue changes, Chen appeared at a merits
hearing on April 2, 2008. She requested a continuance because she had a new attorney and had not
had time to prepare some unidentified materials. The immigration judge denied her request, noting
that Chen’s counsel of record was present and the case had already been delayed due to several venue
changes. After a hearing, the immigration judge issued a first oral decision denying relief under the
Convention Against Torture. Chen then stated that she wanted to apply for asylum and withholding
of removal as well, and the immigration judge issued a second oral decision denying these two forms
of relief. The immigration judge concluded that Chen was not a credible witness, made no claim of
past persecution, failed to establish a well-founded fear of future persecution, and failed to establish
a nexus between the alleged future persecution and a protected ground. Chen appealed.
The Board affirmed the immigration judge’s decision on January 13, 2010.1 The Board found
that the immigration judge had properly denied the motion for a continuance based on Chen’s failure
to show good cause and the substantial delay in the case. In addition, the Board found that the
1
The Board stated that Chen appealed only the denial of the continuance, but it also stated that the immigration
judge properly determined that Chen failed to establish eligibility for asylum, withholding of removal, or relief under
the Convention Against Torture. Chen’s Notice of Appeal stated that she was filing an appeal from the immigration
judge’s decision in a merits proceeding, but her opening brief to the Board addressed only the continuance. The United
States has not argued that she is foreclosed from appealing the denial of asylum, withholding of removal, or relief under
the Convention Against Torture.
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immigration judge had properly determined that Chen failed to carry her burden of establishing her
right to asylum, withholding of removal, or relief under the Convention Against Torture.
II. ANALYSIS
We note at the outset that Chen’s opening brief is so poorly developed and conclusory that
it is questionable whether it even preserves her claims. See Dillery v. City of Sandusky, 398 F.3d
562, 569 (6th Cir. 2005) (“It is well-established that issues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are deemed waived.” (internal quotation
marks and citation omitted)). However, in order to avoid penalizing Chen for her attorney’s
deficiencies, we address the claims on the merits. Because the Board adopted the immigration
judge’s reasoning and supplemented the opinion, we review the immigration judge’s opinion and
consider the Board’s additional commentary. See Zhao v. Holder, 569 F.3d 238, 246 (6th Cir. 2009).
A. Motion for a Continuance
Chen requested a continuance because she had hired a new attorney and they had not had
time to prepare certain unidentified materials. An immigration judge “may grant a motion for
continuance for good cause shown.” 8 C.F.R. § 1003.29 (2008). We review the denial of a
continuance for abuse of discretion. See Berri v. Gonzales, 468 F.3d 390, 394 (6th Cir. 2006). “An
abuse of discretion can be shown when the [immigration judge] or Board offers no rational
explanation, inexplicably departs from established policies, or rests on an impermissible basis such
as invidious discrimination against a particular race or group.” Id. at 395 (internal quotation marks
and citations omitted).
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The immigration judge noted that Chen’s counsel of record was present and she had already
received a number of venue changes resulting in delay. These reasons provide a sufficient basis for
us to find that there was no abuse of discretion in denying the continuance. Chen’s attorney of
record was present and no other attorney had filed an appearance. Chen did not provide any
additional information about the unidentified materials that she wanted to prepare. Chen’s
proceedings had been pending for more than three years, she had received three previous venue
changes, and the immigration judge noted that she had been provided with seven months’ notice of
her merits hearing. Thus, the immigration judge did not abuse his discretion in declining to grant
a continuance. See id. (holding that an immigration judge did not abuse his discretion in denying
a continuance when petitioners hired new counsel only several weeks before their hearing that had
been postponed several times).
To the extent that Chen alleges a violation of due process based on the denial of the
continuance, this argument fails. See Abu-Khaliel v. Gonzales, 436 F.3d 627, 635 (6th Cir. 2006)
(stating that the denial of a continuance did not offend due process because a continuance is
discretionary). To the extent that Chen alleges a violation of due process based on deprivation of
counsel, this argument fails as well. Chen’s attorney of record was present, and Chen failed to allege
prejudice. See Warner v. Ashcroft, 381 F.3d 534, 539 (6th Cir. 2004) (stating that when making a
claim of deprivation of counsel, “proof of prejudice is necessary to establish a due process violation
in an immigration hearing”). Thus, we AFFIRM the denial of the continuance.
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B. Asylum, Withholding of Removal, and Relief Under the Convention Against Torture
We next review Chen’s claims for asylum, withholding of removal, and relief under the
Convention Against Torture.2 We review “any legal conclusions de novo and factual findings and
credibility determinations for substantial evidence.” Zhao, 569 F.3d at 246 (internal quotation marks
and citation omitted). The Board’s findings of fact are conclusive unless “any reasonable adjudicator
would be compelled to conclude to the contrary.” Id. at 247 (internal quotation marks and citation
omitted).
To be eligible for asylum, an applicant must establish that she is unable or unwilling to return
to her home country because of persecution or a well-founded fear of persecution on account of a
protected ground. 8 U.S.C. §§ 1158(b)(1)(A), 1101(a)(42)(A); Ali v. Ashcroft, 366 F.3d 407, 410
(6th Cir. 2004). To be eligible for withholding of removal, an applicant must meet the higher burden
of demonstrating that “it is more likely than not” she will be persecuted upon her return. 8 C.F.R.
§ 1208.16(b)(2); El-Moussa v. Holder, 569 F.3d 250, 257 (6th Cir. 2009). To be eligible for
protection under the Convention Against Torture, an applicant must establish that “it is more likely
than not that . . . she would be tortured if removed to the proposed country of removal.” 8 C.F.R.
§ 1208.16(c)(2); Pilica v. Ashcroft, 388 F.3d 941, 951 (6th Cir. 2004). Although these three forms
of relief impose different burdens of proof on a petitioner, we find that Chen’s lack of credibility
coupled with her failure to produce corroborating evidence defeats all three claims.
2
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 3, Dec.
10, 1984, S. Treaty Doc. No. 100-20, p. 20, 1465 U.N.T.S. 85; see 8 C.F.R. §§ 1208.16-.18.
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Chen claims that the immigration judge’s adverse credibility finding was not supported by
substantial evidence. Because Chen filed her application before the REAL ID Act, the adverse
credibility finding must be “supported by specific reasons” and “based on issues that go to the heart
of the applicant’s claim.”3 Sylla v. I.N.S., 388 F.3d 924, 926 (6th Cir. 2004). We find that the
adverse credibility determination was based on substantial evidence.4
An “alien’s own testimony can be sufficient to support an application for asylum, where the
testimony is believable, consistent, and sufficiently detailed to provide a plausible and coherent
account of the basis for his fear.” Perkovic v. I.N.S., 33 F.3d 615, 621 (6th Cir. 1994) (internal
quotation marks and citation omitted). However, an alien’s testimony that is vague and undetailed
may support an adverse credibility determination. See Dorosh v. Ashcroft, 398 F.3d 379, 382 (6th
Cir. 2004) (“Under [Board] rulings, credibility encompasses not just consistency but also plausibility
and sufficient detail.”).
Chen provided very little detail regarding her parents’ business venture and the consequences
of their failure to pay their debt. The immigration judge noted that “[t]he only evidence presented
3
The REAL ID Act of 2005 amended the standard for credibility determinations, permitting the immigration
judge to consider the totality of the circumstances, including inconsistencies that do not “go to the heart of” the
applicant’s claim. See El-Moussa, 569 F.3d at 256. However, this provision applies only to applications filed after May
11, 2005, and Chen’s was filed on March 16, 2005. See id.
4
A problem with the administrative record creates a slight wrinkle in our task of appellate review. As discussed
above, the immigration judge issued a first oral decision denying Chen relief under the Convention Against Torture, and
a second oral decision denying asylum and withholding of removal. However, the first oral decision does not appear
in the certified administrative record or in the record relied upon by the Board. Rather, the Board reviewed only the
second oral decision. In the immigration judge’s second oral decision, he states “[f]or discussion of the issue of
credibility and the respondent’s credibility in this matter, the Court refers to its decision issued this date in connection
with the respondent’s application for relief in the form of withholding of removal under the Convention against Torture.”
Thus, it appears that the second oral decision does not contain the immigration judge’s full reasoning regarding his
adverse credibility determination. However, we find that the immigration judge discussed the adverse credibility
determination in the second oral decision adequately enough to enable meaningful appellate review.
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by the respondent in this case is that [Chen’s] parents were involved apparently in a failed real estate
investment venture, which was financed by money that was borrowed from other people.” At the
hearing, Chen did not recall when her parents made the alleged investment, and she was unable to
name the people from whom her parents borrowed money.5 Although she claimed that she was
threatened, the immigration judge noted that she was “unable to testify who made the threats, when
they were made, in what context they were made, [or] to whom they were made. [Chen] just sets
forth an unsupported belief that her life would be in danger if she returned to the People’s Republic
of China.” Despite the immigration judge’s multiple inquiries to Chen for specifics, her testimony
about the failed real estate venture lacked the kinds of details such as names, dates, and context that
would have lent her story credence. Because the failed real estate venture and threats against her
family form the very basis of Chen’s claims for asylum, withholding of removal, and protection
under the Convention Against Torture, these issues undoubtedly go to the heart of her claims. Cf.
Sylla, 388 F.3d at 926. Thus, under the deferential substantial evidence standard, we find no basis
to overturn the immigration judge’s adverse credibility determination.
The immigration judge also did not err in using Chen’s failure to provide corroborating
evidence as support for the finding that she did not meet her burden of proof regarding her claims.
“[W]here it is reasonable to expect corroborating evidence for certain alleged facts pertaining to the
specifics of an applicant’s claim, such evidence should be provided.” Dorosh, 398 F.3d at 382
(internal quotation marks and citation omitted). Because the immigration judge found that Chen was
5
In Chen’s application for withholding of removal she provides the name of one person to whom her parents
owed money.
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not credible, he could have properly determined that she was obligated to provide objective
corroboration of her claims. See Sako v. Gonzales, 434 F.3d 857, 862 (6th Cir. 2006) (“Where the
alien’s testimony could be viewed as incredible, inconsistent, or incoherent, a fact-finder may
reasonably conclude, absent corroboration, that the testimony is insufficient to meet the standard of
proof required.”). An adverse credibility finding coupled with a failure to present corroborating
evidence may prevent a claimant from meeting her burden of proof. See Dorosh, 398 F.3d at 382.
The immigration judge noted that although over three years had passed since the Notice to
Appear, Chen had failed to submit any corroborating evidence to support her testimony. He noted
in particular that she had failed to present written statements from her mother, father, or brother. The
immigration judge did not err in questioning Chen’s failure to produce these documents. Chen stated
that her mother, father, and brother were in China, and that her father was working for the Chinese
government. Thus, she could have been reasonably expected to submit one or more affidavits in
support of her claim. See id. at 383 (holding that corroborative evidence could be reasonably
expected when petitioner was in contact with her mother yet produced no affidavit from her, despite
having ample time between her notice of removal and hearing).
Thus, the immigration judge’s finding that Chen was not credible is supported by substantial
evidence, and she presented no corroborating evidence. Because Chen’s testimony could be viewed
as incredible, a fact finder reasonably could find that this testimony, absent corroboration, was
insufficient to meet her burden of proof on any of her claims. See Pilica, 388 F.3d at 954. Chen’s
claims are all based on the same grounds—her parents’ failed real estate venture and inability to pay
their debts. Thus, her lack of credibility coupled with her lack of corroborating evidence is fatal to
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all three claims.6 See El-Moussa, 569 F.3d at 256-57 (holding that an adverse credibility finding was
fatal to petitioner’s claims of asylum, withholding of removal, and relief under Convention Against
Torture because she could not meet her burden of proof regarding any of the claims unless the court
credited her testimony). Thus, we AFFIRM the Board’s denial of asylum, withholding of removal,
and relief under the Convention Against Torture.
III. CONCLUSION
The immigration judge did not abuse his discretion in denying Chen’s motion for a
continuance. In addition, the immigration judge and Board did not err in denying Chen’s claims of
asylum, withholding of removal, and relief under the Convention Against Torture. Thus, we
AFFIRM the Board’s order and DENY Chen’s petition for review.
6
W e note that the immigration judge and Board also correctly found that Chen failed to establish that any
persecution that she might suffer would be on account of a protected ground, as required for a claim based on asylum
or withholding of removal.