Chen Zhang v. Eric Holder, Jr.

Filing

UNPUBLISHED OPINION FILED. [13-60550 Affirmed] Judge: PEH , Judge: JLD , Judge: JEG. Mandate pull date is 08/11/2014; denying motion to strike brief filed by Respondent Mr. Eric H. Holder, Jr., U. S. Attorney General [7661595-2] [13-60550]

Case: 13-60550

Document: 00512669022

Page: 1

Date Filed: 06/18/2014

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-60550
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
June 18, 2014

CHEN CHEN ZHANG,
Petitioner

Lyle W. Cayce
Clerk

v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A087 917 492
Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM: *
Chen Chen Zhang, a native and citizen of China, petitions for review of
a decision by the Board of Immigration Appeals (BIA) dismissing his
application for asylum, withholding of removal and relief under the Convention
Against Torture (CAT). Zhang sought relief based on his participation in
underground Christian church activities, for which he was arrested and
beaten, and his fear that he would be persecuted if he returned to China. The

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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Document: 00512669022

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No. 13-60550
immigration judge (IJ) determined that Zhang was not credible and had failed
to establish that he was entitled to relief and ordered Zhang removed to China.
The BIA agreed and affirmed the IJ’s decision, dismissing the appeal.
We review the factual determination that an alien is not eligible for
asylum, withholding of removal, or relief under the CAT under the substantial
evidence standard. See Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006).
Under that standard, we may not reverse an immigration court’s factual
findings unless “the evidence was so compelling that no reasonable factfinder
could conclude against it.” Wang v. Holder, 569 F.3d at 531, 537 (5th Cir.
2009).
Zhang argues that the IJ and BIA erred in making an adverse credibility
determination because the discrepancies relied upon were minor and did not
go to the heart of his claim for relief.

However, in making a credibility

determination, the trier of fact considers the totality of the circumstances
“without regard to whether an inconsistency, inaccuracy, or falsehood goes to
the heart of the applicant’s claim, or any other relevant factor.” 8 U.S.C.
§ 1158(b)(1)(B)(iii). Even if there could be reasonable explanations for some of
the omissions and discrepancies, it is not plain, based on the totality of the
circumstances, that no reasonable factfinder could make an adverse credibility
ruling. See Wang, 569 F.3d at 538.
As for Zhang’s argument that the IJ and BIA erred in concluding that he
was not entitled to asylum because his detention and the sole incident of
mistreatment during his detention did not rise to the level of persecution, he
has failed to show that the evidence compels a contrary conclusion. See Zhao
v. Gonzales, 404 F.3d 295, 306 (5th Cir. 2005).

Zhang also has failed to

demonstrate a well-founded fear of future persecution if he is returned to
China. See id. at 307. There is no evidence that Zhang would be singled out

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for persecution or that there is a pattern or practice of persecuting Christians
in China.

Id.; see 8 C.F.R. § 208.16(b)(1)(i); 8 C.F.R. § 208.13(2)(b)(iii).

Moreover, members of Zhang’s family continue to live in China and practice
their Christianity at an underground church without suffering any harm. See,
e.g., Mei He v. Holder, 442 F. App’x 172, 174 (5th Cir. 2011) (noting, inter alia,
that alien’s parents practiced Christianity in a government-monitored church
as well as a family, or underground, church in determining that alien had
failed to demonstrate fear of future persecution).
Because the burden of establishing eligibility for withholding of removal
is greater than that required for asylum, Zhang’s failure to establish eligibility
for asylum is dispositive of his claim for withholding of removal. Majd v.
Gonzales, 446 F.3d 590, 595 (5th Cir. 2006). Zhang also has failed to show that
the evidence compels a conclusion “that it is more likely than not that he would
be tortured if returned to his home country.” Zhang v. Gonzales, 432 F.3d 339,
344-45 (5th Cir. 2005); see also 8 C.F.R. § 208.16(c)(2).
Accordingly, Zhang’s petition for review is DENIED. The Government’s
motion to strike the petitioner’s brief for noncompliance with Federal Rule of
Appellate Procedure 28 is DENIED.

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