Hai Chen v. Attorney General USA

Filing

NOT PRECEDENTIAL OPINION Coram: SHWARTZ, GREENBERG and ROTH, Circuit Judges. Total Pages: 4. Judge: GREENBERG Authoring.

Case: 16-1526

Document: 003112468084

Page: 1

Date Filed: 11/21/2016

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 16-1526
______________
HAI WEN CHEN,
A/K/A Hi Wen Chen,
A/K/A Hi Wen Zhen,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,
Respondent
______________
On Petition for Review of a Decision
and Order of the Board of Immigration Appeals
(BIA No. A089-708-310)
Immigration Judge: Annie S. Garcy
______________
Submitted under Third Circuit LAR 34.1(a)
October 4, 2016
BEFORE: SHWARTZ, GREENBERG, and ROTH, Circuit Judges
(Filed: November 21, 2016)
______________
OPINION*
______________
GREENBERG, Circuit Judge.
____________________
*This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7
does not constitute binding precedent.

Case: 16-1526

Document: 003112468084

Page: 2

Date Filed: 11/21/2016

This matter comes on before this Court on Hai Wen Chen’s petition for review of
a decision and order of the Board of Immigration Appeals (“Board”) dated September 17,
2015, dismissing Chen’s appeal from an oral decision and written order of an
immigration judge (“IJ”) denying his applications for asylum, withholding of removal,
and relief under the Convention Against Torture and ordering Chen’s removal from the
United States. Chen explains in his brief that he entered the United States on December
6, 2009, “without being admitted or parole[d].” Petitioner’s br. at 3. He further explains
that he came from China and left that country “because he detested the despotic regime of
the Chinese government.” Id. at 4.
Chen does not contend, however, that he is entitled to relief because of the nature
of the Chinese government. To the contrary, he explains in his brief that:
During his stay in the United States, [he] received some Falun Gong flyers
in [the] street. He began to have interest in Falun Gong and decided to
learn to practice Falun Gong. [He] knew the Chinese government is
cracking down [on] Falun Gong, since he is currently practicing Falun
Gong, he is afraid that he would be persecuted if he were sent back to
China.
Id. at 5-6 (citation omitted). Thus, he bases his claims not on what had happened to him
in China but his alleged fear that Chinese government will persecute him if he returns to
that country. As the Board explained, the IJ “found that the [petitioner] was not credible,
and that he has not met his burden to establish that he is prima facie eligible for the relief
he seeks.” A.R. at 3. The Board dismissed the appeal from the IJ’s decision because it
held that:
The Immigration Judge offered specific and cogent reasons for her finding
that [petitioner] was not credible, including the omissions and
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Date Filed: 11/21/2016

inconsistencies within his account, his vague testimony regarding his
practice of Falun Gong, and the lack of evidence for his claim such as the
absence of information about the person who[ ] took posed photographs of
him practicing Falun Gong, his inability to identify any person outside his
immediate family who is aware of his Falun Gong practice, and his
witness’s lack of knowledge for his claim that he attended Falun Gong
activities in Washington, D.C. See I.J. at 9-15. She considered the totality
of the circumstances, including the [petitioner’s] age, mental condition, and
organizational skills, in rendering her adverse credibility determination. Id.
at 6-15; Thu v. Att’y Gen., 510 F.3d 405, 416 (3d Cir. 2007) (all the facts
available in the record should be considered in a credibility determination).
We note that an adverse credibility determination under the REAL ID Act
may be based on testimony regardless of whether it goes to the heart of an
applicant’s claim. See section 208(b)(1)(B)(iii) of the Act; Lin v. Att’y
Gen., 543 F.3d 114, 119 n.5 (3d Cir. 2008). We conclude that the
Immigration Judge’s adverse credibility finding is not clearly erroneous.
See I.J. at 10-15; section 208(b)(1)(B)(iii) of the Act; 8 C.F.R. §
1003.1(d)(3)(i).
A.R. at 3-4. Petitioner then filed a timely petition for review with this Court.
The Board had jurisdiction under 8 C.F.R. § 1003.1(b)(3) and § 1240.15. We have
jurisdiction under 8 U.S.C. § 1252(a)(1) and (b). Venue properly was laid in this Court
because the proceedings before the IJ were completed in Newark, New Jersey, within this
circuit. In considering the petition in this case, we review the record on a substantial
evidence standard. See INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 815
(1992); Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir. 2003) (en banc). Thus, we determine
if substantial evidence supports the decision under review. Though Chen’s petition seeks
review of a decision of the Board, inasmuch as the Board affirmed the IJ’s adverse
credibility finding with respect to petitioner’s testimony on the basis of the IJ’s analysis,
we also are reviewing her decision. See Sandie v. Att’y Gen., 562 F.3d 246, 250 (3d Cir.
2009). Finally, with respect to jurisdiction we observe that the respondent contends that
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Date Filed: 11/21/2016

we lack “jurisdiction over Petitioner’s claim that the [IJ] erred in finding his testimony
not credible because he failed to exhaust this issue before the Board.” Respondent’s br.
at 15.
After our review of this matter we have concluded that even setting aside
respondent’s jurisdictional argument and reviewing the entire record and considering all
the issues petitioner raises, his petition for review is devoid of merit for the reasons the
Board and the IJ set forth. In the circumstances, we cannot reject the IJ’s and the Board’s
findings as we cannot say that no reasonable factfinder could have come to their
conclusions. See Xie v. Ashcroft, 359 F.3d 239, 243 (3d Cir. 2004).
The petition for review will be denied. Costs taxed against the petitioner.

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