Chen v. Holder
Filing
Chen v. Holder
Doc. 0
Case: 08-60291
Document: 00511166800
Page: 1
Date Filed: 07/08/2010
REVISED July 8, 2010 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
United States Court of Appeals
N o . 08-60291 S u m m a r y Calendar
F if t h Circuit
FILED
January 27, 2010 Charles R. Fulbruge III Clerk
F A N G CHEN, P e titio n e r v. E R I C H. HOLDER, JR., U. S. ATTORNEY GENERAL, R espon dent
P e tit io n for Review of an Order of the B o a r d of Immigration Appeals B I A No. A00 040 170
B e fo r e HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges. P E R CURIAM:* F a n g Chen, a Chinese national, seeks review of the Board of Immigration A p p e a ls ' final order of removal. That order dismissed her appeal of the
im m ig r a t io n judge's denial of Chen's applications for asylum and withholding of r e m o v a l. Chen argues that the IJ's adverse credibility finding is not supported b y the record. Because Chen filed her application for relief in December 2005,
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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Dockets.Justia.com
Case: 08-60291
Document: 00511166800 Page: 2 No. 08-60291
Date Filed: 07/08/2010
t h is case is governed by the standards of the REAL ID Act for evaluating witness c r e d ib ilit y in asylum and withholding of removal cases.1 Although Chen applied fo r relief under the Convention Against Torture, she has waived that claim by fa ilin g to brief the issue before this court.2 W e defer "to an IJ's credibility determination unless, from the totality of t h e circumstances, it is plain that no reasonable fact-finder could make such an a d v e r s e credibility ruling."3 In making his adverse credibility finding, the IJ n o te d , among other things, that: (1) Chen's husband moved to the United States in 2001, despite her claim that they wanted to have more children at that time; (2 ) the forced insertion and continued use of an intrauterine device (IUD) c o n s t it u t e d a major element in Chen's asylum claim, but she had not yet r e m o v e d the IUD at the time of her asylum hearing; (3) her claim that the 2005 flo o d in China prevented her from submitting additional corroborating evidence d id not explain why she did not submit affidavits from her family members and f r ie n d s ; and (4) there were many inconsistencies between Chen's testimony at t h e asylum hearing and the information contained in the Form I-213 that was c o m p le t e d by a border patrol agent shortly after Chen's arrival in the United S t a te s . Our review of the record and Chen's arguments shows that the IJ's a d v e r s e credibility finding warrants deference.4 Although we are not convinced t h a t all cited inconsistencies were in fact inconsistent, we need not be, as the IJ's d e t e r m in a t io n rested on an abundance of evidence that precludes us from saying " n o reasonable fact-finder could make such an adverse credibility ruling." 5
See 8 U.S.C. § 1158(b)(1)(B)(ii), (iii); 8 U.S.C. § 1231(b)(3)(C); REAL ID Act § 101(h)(2), Pub. L. 109-13, 119 Stat. 302, 305.
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See Thuri v. Ashcroft, 380 F.3d 788, 793 (5th Cir. 2004).
Wang v. Holder, 569 F.3d 531, 53839 (5th Cir. 2009) (quoting Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008)) (internal quotation marks omitted).
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See id. See id.
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Case: 08-60291
Document: 00511166800 Page: 3 No. 08-60291
Date Filed: 07/08/2010
B e c a u s e Chen's testimony was the primary evidence offered in support of h e r asylum claim, and the IJ found that testimony less than completely credible, s h e has not shown that her evidence was "so compelling that no reasonable fa c t f i n d e r could fail to find the requisite fear of persecution."6 Because her a s y lu m claim does not warrant relief, her claim for withholding of removal also fa ils .7 C h e n 's petition for review is DENIED.
Jukic v. INS, 40 F.3d 747, 749 (5th Cir. 1994) (internal quotation marks and citation omitted); see also 8 U.S.C. § 1158(b)(1)(B)(ii) (specifying criteria allowing petitioner's credible testimony to constitute sole support for sustaining burden of proving eligibility for asylum).
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See Eduard v. Ashcroft, 379 F.3d 182, 186 n.2 (5th Cir. 2004).
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