Xiu Yan Chen v. Holder

FILED
NOT FOR PUBLICATION DEC 11 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
XIU YAN CHEN, No. 05-73068
Petitioner, Agency No. A096-188-822
v.
MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 8, 2009 **
Pasadena, California
Before: REINHARDT, TROTT and WARDLAW, Circuit Judges.
Xiu Yan Chen, a native and citizen of China, petitions for review of a
decision of the Board of Immigration Appeals (“BIA”) affirming the
determinations of an immigration judge (“IJ”) denying Chen’s applications for
asylum, withholding of removal, and protection under the Convention Against
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
Torture (“CAT”). We have jurisdiction pursuant to 8 U.S.C. § 1252(a), and deny
the petition.
Substantial evidence in the record supports the IJ’s adverse credibility
finding with respect to Chen. Chen failed to mention in her asylum application
that her mother had been arrested during the raid on an underground church that
Chen claimed was the catalyst for her flight from China. She then relied on her
mother’s alleged arrest and subsequent imprisonment, which she mentioned for the
first time in her testimony before the IJ, as a principal basis for her claim for
asylum, withholding of removal, and CAT protection.
An adverse credibility determination by an IJ may not be based on minor
inconsistencies that do not go to the heart of an asylum applicant’s claim. See Li v.
Holder, 559 F.3d 1096, 1103 (9th Cir. 2009); Mendoza Manimbao v. Ashcroft, 329
F.3d 655, 660 (9th Cir. 2003). Here, however, Chen presented a “last minute
uncorroborated story” concerning “a dramatic, pivotal event” during the hearing
before the IJ that she had omitted from her previously filed asylum application.
See Alverez-Santos v. INS, 332 F.3d 1245, 1254 (9th Cir. 2003). This court must
uphold an IJ’s adverse-credibility finding “so long as one of the identified grounds
is supported by substantial evidence and goes to the heart of [the petitioner's] claim
of persecution.” Li v. Ashcroft, 378 F.3d 959, 964 (9th Cir. 2004). In this case, the
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IJ’s determination that Chen’s testimony was not credible because of the
significant omission from her asylum application of any information about her
mother’s alleged arrest and imprisonment was supported by reasonable, substantial
and probative evidence in the record, and a reasonable adjudicator would not be
“compelled to conclude to the contrary.” 8 U.S.C. § 1252(b0(40(B); Lopez v.
Ashcroft, 366 F.3d 799, 802 (9th Cir. 2004).
Chen has failed to assert a credible claim of past persecution on account of
religion, and has failed to provide credible evidence indicating any likelihood of
future persecution because of her religious beliefs and practices, if she were to be
removed to China. See 8 U.S.C. § 1101(a)(42)(A); 8 U.S.C. § 1231(b)(3)
The BIA’s decision that Chen is ineligible for asylum, withholding of removal, or
CAT protection is supported by substantial evidence in the record. We therefore
deny her petition.
DENIED.
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