Xiaolong Chen v. Eric Holder, Jr.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT NOV 21 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
XIAOLONG CHEN, No. 10-71845
Petitioner, Agency No. A099-458-435
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 13, 2014**
San Francisco, California
Before: KOZINSKI, Chief Judge, McKEOWN and CLIFTON, Circuit
Judges.
The BIA’s affirmance of the immigration judge’s adverse credibility finding
is supported by substantial evidence. The immigration judge, and the BIA, listed
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
page 2
“specific instances in the record that form[ed] the basis of the agency’s adverse
credibility determination,” Shrestha v. Holder, 590 F.3d 1034, 1042 (9th Cir.
2010), including Chen’s inconsistent and inherently implausible testimony
regarding his travels to and within the United States, for which Chen could not
provide any documentation or corroborating evidence to support. The immigration
judge, and the BIA, also properly relied on Chen’s inconsistent statements
regarding when he discovered what happened to the people who were with him
when, he claims, the Chinese police interrupted his religious gathering.
Considering the “totality of the circumstances,” 8 U.S.C. § 1158(b)(1)(B)(iii);
Shrestha, 590 F.3d at 1039–40, nothing in the record “compels a contrary
conclusion.” Singh v. Gonzales, 439 F.3d 1100, 1105 (9th Cir. 2006).
The BIA’s conclusion that Chen failed to provide reasonably obtainable
corroborating evidence—such as affidavits from his family or fellow Chinese
home church members, or any documentation of his travels—was supported by
substantial evidence. See 8 U.S.C. § 1158(b)(1)(B)(ii); Shrestha, 590 F.3d at
1047–48. Chen testified that he spoke to his father, who lived in China, every
three to five days since he arrived in the United States, and that his siblings lived in
the United Kingdom. Furthermore, although Chen testified that all evidence of his
travels was confiscated by the “snakehead” who allegedly arranged for Chen’s
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seven-month trip to the United States, he then claimed that it was “impossible” to
contact the snakehead. The immigration judge, and the BIA, rejected Chen’s
explanation for why he had provided “absolutely zero documents corroborating his
account.” A reasonable trier of fact “would not be compelled to conclude that
corroborating evidence was unavailable.” Shrestha, 590 F.3d at 1048 (citing 8
U.S.C. § 1252(b)(4)).
We lack subject matter jurisdiction to review Chen’s argument that the
immigration judge “failed to give Chen an opportunity to explain” his inconsistent
testimony regarding where his siblings reside, and how Chen learned what had
happened to the people who were with him when, he claims, the Chinese police
interrupted his religious gathering, because Chen failed to raise this argument
before the BIA. See 8 U.S.C. § 1252(d)(1); Barron v. Ashcroft, 358 F.3d 674,
677–78 (9th Cir. 2004).
The immigration judge’s refusal to accept Chen’s untimely submission of a
letter from Chen’s father didn’t amount to a denial of due process. Chen admitted
before the BIA that his submission of the letter was untimely, and that the
immigration judge “may properly deny admission” of untimely evidence. Chen
also doesn’t contest the BIA’s finding that he was given an opportunity to explain
why he submitted the letter in an untimely manner. Thus, Chen fails to show that
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the immigration judge erred in rejecting the letter. See 8 C.F.R. § 1003.31(c); Lata
v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000).
In the absence of credible testimony, there is no objective evidence to
support Chen’s asylum, withholding of removal and Convention Against Torture
claims. See Shrestha, 590 F.3d at 1048.
Chen’s Motion to Hold Appeal in Abeyance pending resolution of his
request for prosecutorial discretion and a ruling on his wife’s alien relative petition
is denied. DHS has already declined Chen’s request to exercise prosecutorial
discretion and Chen can pursue the alien relative petition independently of his
petition for review.
PETITION DENIED in part, DISMISSED in part.