Lei Chen v. Eric Holder, Jr.

Filing

OPINION filed : We DISMISS for lack of jurisdiction the petition for review of Chen's asylum application, and we DENY the remainder of his petition for review. Karen Nelson Moore, Authoring Circuit Judge; R. Guy Cole , Jr., Circuit Judge and Gershwin A. Drain, U.S. District Judge for the Eastern District of Michigan, sitting by designation.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATON
File Name: 14a0280n.06
No. 13-3333

FILED

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

LEI CHEN,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.

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Apr 15, 2014
DEBORAH S. HUNT, Clerk

ON PETITION FOR REVIEW OF
AN ORDER OF THE BOARD OF
IMMIGRATION APPEALS

OPINION

Before: MOORE and COLE, Circuit Judges; DRAIN, District Judge.*
KAREN NELSON MOORE, Circuit Judge. Lei Chen petitions this court to review
the denial of his application for asylum and withholding of removal by an immigration judge
(“IJ”) and the Board of Immigration Appeals (“BIA”). The IJ found petitioner and his witness
not credible and denied the application. The BIA affirmed without opinion. Chen argues that
the immigration judge erred in making both adverse credibility findings and that the IJ failed to
give proper weight to Chen’s testimony. Because of jurisdictional limits, we must DISMISS the
petition in part, and because the adverse credibility findings are supported by substantial
evidence, we DENY all remaining claims.
I. BACKGROUND
Lei Chen, a citizen and national of the People’s Republic of China (“China”), claimed to
have entered the United States on November 20, 2008. According to his testimony, he is a
*

The Honorable Gershwin A. Drain, United States District Judge for the Eastern District
of Michigan, sitting by designation.

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Chen v. Holder
Christian who was persecuted in China due to his religious beliefs. He filed an affirmative
application for asylum on November 17, 2009.

On January 15, 2010, the Department of

Homeland Security issued a Notice to Appear, commencing removal proceedings.
Administrative Record (“A.R.”) at 42 (Oral Decision and Order of the Immigration Judge (“Oral
Dec.”) at 1). Before the immigration judge (“IJ”), Chen conceded removability, but sought
asylum and withholding of removal under the Immigration and Nationality Act (“INA”) as well
as withholding of removal under the Convention Against Torture (“CAT”). Id. at 43–44 (Oral
Dec. at 2–3).
The evidence presented to the IJ is not in dispute. Chen submitted a number of exhibits,
testified personally, and had a witness testify on his behalf. Id. at 44 (Oral Dec. at 3). Chen
testified that he was born and grew up in China. Id. at 45 (Oral Dec. at 4). As a child, he
attended the government-sanctioned Christian church. Id. He was baptized at the government
church on May 10, 2007. Id. at 48 (Oral Dec. at 7).1 Soon thereafter, he was introduced to and
began attending a family church, an unsanctioned church which meets at various places and
attempts to worship free of government interference. Id. at 45 (Oral Dec. at 4). His attendance
at the family church began on May 20, 2007,2 and he preferred its teachings and greater religious
freedom. See id. Chen was willing to risk the legal consequences of attending the unlawful
gatherings of the family church. Id. at 46 (Oral Dec. at 5).
1

Chen stated that he was baptized on May 10, 2007, which was a Sunday. A.R. at 147
(Tr. of Hr’g, February 28, 2011, at 36). May 10, 2007, was actually a Thursday.
2

May 20, 2007, was, in fact, a Sunday making attendance at a different Sunday service
ten days earlier impossible.
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According to Chen’s testimony, the family church was raided by the police on either
February 10, 2008, August 10, 2008, August 20, 2008, or several of these dates.3 Id. Along with
other church members, he was arrested and detained for one day. Id. The police warned Chen
not to attend the family church and forced him to sign a guarantee that he would not do so again
or otherwise face imprisonment. Id. The family church was again raided by the police on
August 24, 2008.4 Id. Chen escaped arrest and hid at a friend’s home. Id. According to Chen,
his mother told him not to return home because the police had been there looking for him. Id.
According to Chen, the police returned to his home on September 4, 2008, and beat his father to
try to find out from him where Chen was hiding. Id. At this point, Chen made the decision to
leave China, which his parents supported. Id. at 46–47 (Oral Dec. at 5–6).
According to Chen, his parents borrowed money in order to pay snakeheads, a Chinese
gang that specializes in human smuggling, to sneak him out of China and into the United States
for $58,000. Id. at 47 (Oral Dec. at 6). The smugglers made all of the arrangements that
included transport within China and then to Hong Kong, a flight to Paris, a flight to Mexico City,
a border crossing into the U.S., a trip to Houston, and the final drop-off in New York City. Id.
As part of his trip, Chen took a bus from Changle City to Senzheng. Id. at 50–51 (Oral Dec. at
3

In his later testimony, Chen claims never to have said February 10 or August 20, but
rather to have always said August 10. A.R. at 149–50 (Tr. of Hr’g, February 28, 2011, at 38–
39). The record, however, captures that he did state that he was first arrested on February 10,
2008. See id. at 135 (Tr. of Hr’g, February 28, 2011, at 24). Moreover, he also stated that he
was arrested on August 20, 2008. Id. at 136 (Tr. of Hr’g, February 28, 2011, at 25).
4

In her oral decision, the IJ stated that “[Chen] was again arrested on August 24, 2008.”
Id. The IJ clearly misspoke as she noted in the following sentence that “[Chen] was sitting near
the door and was able to escape when they came.” Id.
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9–10). According to Chen, he brought the receipt from this portion of his trip to the United
States with him, along with a receipt for a hotel in China where he stayed along his trip, and
submitted these receipts to the court. Id. Chen testified that he brought these receipts to the
United States in his wallet. Id. at 51 (Oral Dec. at 10).
According to Chen, he arrived in the United States on November 20, 2008. Id. at 47
(Oral Dec. at 6). A smuggler instructed him to call his mother from his location in Houston to
inform her that he was in the United States and that she should pay them. Id. His mother told
Chen the date. Id.
Chen then moved to Kentucky on December 5, 2008. Id. In Kentucky, he joined the
Chinese Christian Church in January 2009. Id. At the hearing, Chen communicated that he
feared returning to China because his parents had told him that the police are still planning to
arrest him for attending the unsanctioned church. Id. at 48 (Oral Dec. at 7).
Chen offered the testimony of a witness, Nen Juan Lin. Id. at 52 (Oral Dec. at 11). She
testified that Chen became a regular member of the Chinese Christian Church in Louisville,
Kentucky, in January 2009. Id. They spoke in church and shared meals afterwards. Id. She
provided little detail on his past, as she claimed that they did not discuss their past experiences in
depth. Id. She did, however, state that she knew Chen had been arrested in China and that Chen
stated that the police were still looking for him. Id. at 52–53 (Oral Dec. at 11–12). In terms of
their discussions of Christianity, Lin stated that they spoke about how Jesus died on the cross for
their sins. Id. at 53 (Oral Dec. at 12).

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While Chen did not submit statements from his family, who are farmers in China, he did
submit his baptism certificate from the government-sanctioned church and a notarial certificate,
which were obtained by his parents and sent to him in the United States. Id. at 51 (Oral Dec. at
10).
The IJ found both Chen and his lone witness not credible. Id. at 59, 62 (Oral Dec. at 18,
21). The IJ articulated seven reasons why Chen was not credible. Id. at 59–62 (Oral Dec. at 18–
21). First, the receipts provided by Chen were “in pristine condition” with no creases or folds,
undermining Chen’s claim that he brought them with him from China to the United States in his
pocket-sized wallet. Id. at 59–60 (Oral Dec. at 18–19). Second, Chen erred on his baptism date,
shown by his assertion that he was baptized on Sunday, May 10, 2007, whereas May 10, 2007,
was actually a Thursday. Id. at 60 (Oral Dec. at 19). Third, while Chen testified that his father
was beaten by the police, his asylum application statement said that the police broke furniture
and did not state that his father was beaten. Id. Fourth, Chen was inconsistent as to the dates of
his arrest or arrests. Id. at 60–61 (Oral Dec. at 19–20). Fifth, the timing of Chen being baptized
at the government-sanctioned church on a Sunday and then attending the family church Sunday
service ten days later was “curious” and not possible. Id. at 61 (Oral Dec. at 20). Sixth, the IJ
found implausible Chen’s story that he was recognized by the police (because he was tall and
they could see him) during their August 24, 2008, raid but that he was able to escape. Finally,
the IJ found Chen not credible because he lacked credible corroborating documents, declarations,
and witnesses. Id. at 61–62 (Oral Dec. at 20–21). Similarly, the IJ found Chen’s lone supporting
witness not credible because the IJ found it improbable that the two, having shared these similar
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experiences, would not have discussed them over the two years they had known each other. Id.
at 62 (Oral Dec. at 21).

Second, the IJ faulted the witness for stating that the two had

conversations about their Christianity, but failing to provide specifics regarding anything they
discussed other than Jesus dying on the cross for their sins. Id.
Based on the credibility findings and the absence of corroborating evidence of the date of
Chen’s entry into the United States, the IJ concluded that Chen had not established that his entry
into the United States came within one year of his asylum application being filed. Id. at 63 (Oral
Dec. at 22). In the alternative, even if the asylum claim were timely filed, the IJ rejected both
Chen’s asylum claim and his withholding of removal claim under the INA for lack of credible
evidence. Id. at 63–64 (Oral Dec. at 22–23). Finally, the IJ rejected the CAT claim as not
having been established by credible evidence. Id. at 64 (Oral Dec. at 23). The IJ ordered Chen’s
removal to China. Id. at 65 (Oral Dec. at 24).
The BIA affirmed without opinion the IJ’s determination. A.R. at 3 (Decision of the
Board of Immigration Appeals). This petition for review timely followed.
II. DISCUSSION
Chen presents three arguments in his opening brief. First, he contends that the IJ “erred
as a matter of fact, by finding that [Chen] was not a credible witness.” Appellant Br. at 20.
Second, he argues that the IJ “erred, as a matter of fact, by finding that [Lin] . . . was not
credible.” Id. at 30. Finally, he posits that the IJ “erred, as a matter of law and fact, . . . in failing
to give [Chen]’s testimony sufficient weight where other documentation for establishing
[Chen]’s eligibility for asylum was unavailable.” Id. at 32. Chen readily admits that his final
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argument rests on reversing the factual credibility determination. Id. at 33 (stating that “[a]s
[Chen] should have been found credible, his testimony should have been sufficient . . . to
establish his claim for asylum, since, his testimony, if accepted as credible, clearly establishes
past persecution and both an objective and subjective well-founded fear of future persecution”).
On the asylum claim, the government argues that we cannot review the IJ’s conclusion
because it rests on a finding that Chen failed to “demonstrate[] by clear and convincing evidence
that the application has been filed within 1 year after the date of [his] arrival in the United
States.”

8 U.S.C. § 1158(a)(2)(B).

The government contends that Chen has waived any

argument by not explicitly challenging this conclusion by the IJ. The government also posits that
we lack jurisdiction to review the IJ’s conclusion because the REAL ID Act of 2005 (“REAL ID
Act”), Pub. L. No. 109–13, 119 Stat. 302, limited our jurisdiction to review asylum-applicationtimeliness determinations. The government finally claims that we must affirm the IJ’s decision
as to both asylum and withholding of removal because the IJ’s adverse credibility finding is
supported by substantial evidence.
A. Asylum
First, we reject the government’s argument that Chen waived any challenge that his
asylum application was timely. While Chen’s briefing focuses on the credibility determinations,
the IJ made clear that it is “[d]ue to the lack of credibility . . . and the unreliability of the
documents and the failure of [Chen] to provide details or other corroborating evidence of his
entry date, [that Chen] has not met his burden to establish his entry within one year of the filing
of his application.” A.R. at 63 (Oral Dec. at 22). Thus, attacking the credibility determination
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gets at the heart of the IJ’s decision that Chen failed to prove that his application was filed within
a year of his entry. If Chen, his witness, and his documentary submission are found to be
credible, then they do provide a basis on which an IJ would have to conclude that his application
was filed within the statutory period.
Chen’s arguments for the timeliness of his asylum application rest, as Chen’s opening
brief repeatedly points out, on the factual determinations that neither Chen nor his witness are
credible.

The REAL ID Act, however, limited our jurisdiction when reviewing asylum-

application-timeliness determinations to only constitutional or statutory questions. See 8 U.S.C.
§ 1158(a)(3); Khozhaynova v. Holder, 641 F.3d 187, 191 (6th Cir. 2011) (“Under the REAL ID
Act of 2005, we have jurisdiction to ‘review asylum applications denied for untimeliness only
when the appeal seeks review of constitutional claims or matters of statutory construction, not
when the question is discretionary or factual.’”) (quoting Shkulaku–Purballori v. Mukasey, 514
F.3d 499, 502 (6th Cir. 2007)); see also Almuhtaseb v. Gonzales, 453 F.3d 743, 748 (6th Cir.
2006) (holding that we are barred from reviewing “asylum applications denied for untimeliness
only when the appeal seeks review of discretionary or factual questions, but not when the appeal
seeks review of constitutional claims or matters of statutory construction”); Ngam v. Holder, --F. App’x ---, 2014 WL 803910, at *1 (6th Cir. 2014) (concluding that the panel lacked
jurisdiction to review an asylum denial based on untimeliness where the immigrant “raise[d] no
constitutional or statutory issue, disputing only the IJ’s evidentiary and credibility
determinations”). Thus, we lack jurisdiction to review Chen’s asylum claim because of the IJ’s
factual determination of untimeliness, and we must dismiss this part of the petition for review.
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B. Withholding of Removal
“[T]he Attorney General may not remove an alien to a country if the Attorney General
decides that the alien’s life or freedom would be threatened in that country because of the alien’s
race, religion, nationality, membership in a particular social group, or political opinion.” 8
U.S.C. § 1231(b)(3)(A). Chen bears the burden of establishing his eligibility for withholding of
removal. See 8 U.S.C. § 1158(b)(1)(B); 8 U.S.C. § 1231(b)(3)(C). When the BIA affirms
without opinion, we review whether the IJ’s factual findings are supported by substantial
evidence. See Ndrecaj v. Mukasey, 522 F.3d 667, 672 (6th Cir. 2008). Under the substantial
evidence standard, we must accept the IJ’s findings of fact “unless any reasonable adjudicator
would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).
Credibility determinations are now governed by the REAL ID Act. El-Moussa v. Holder,
569 F.3d 250, 256 (6th Cir. 2009). The Act states in relevant part:
Considering the totality of the circumstances, and all relevant factors, the
immigration judge may base a credibility determination on the demeanor, candor,
or responsiveness of the applicant or witness, the inherent plausibility of the
applicant’s or witness’s account, the consistency between the applicant’s or
witness’s written and oral statements (whenever made and whether or not under
oath, and considering the circumstances under which the statements were made),
the internal consistency of each such statement, the consistency of such
statements with other evidence of record (including the reports of the Department
of State on country conditions), and any inaccuracies or falsehoods in such
statements, 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. § 1229a(c)(4)(C). The IJ articulated many specific reasons why she found Chen, his
witness, and his documentary evidence to be not credible. While we may not agree that each
articulated reason suggests that Chen is not credible, the IJ does base her finding that Chen is not
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credible on some valid reasons. For example, Chen testified that he brought certain receipts with
him from China to the United States in his pocket-sized wallet. A.R. at 168–69 (Tr. of Hr’g,
February 28, 2011, at 57–58). Yet, the IJ noted that the receipts were in pristine condition
without a fold or crease. A.R. at 59 (Oral Dec. at 18). Similarly, at the hearing, Chen testified
that after he escaped arrest on August 24, 2008, the police came to his home looking for him and
beat his father, who would not tell them where Chen was hiding. A.R. at 135–36 (Tr. of Hr’g,
February 28, 2011, at 24–25). However, as the IJ pointed out, A.R. at 60 (Oral Dec. at 19), Chen
failed to state that his father was beaten in his written submission to an asylum officer, noting
instead that after he escaped arrest on August 24, 2008, the police came to his house looking for
him and broke furniture, A.R. at 466, 472 (Application for Asylum and for Withholding of
Removal at 5 and attachment). While such inconsistencies may not in all cases be significant,
they are sufficient in this case under the REAL ID Act to support the finding that Chen is not
credible. See 8 U.S.C. § 1158(b)(1)(B)(iii).5
Similarly, the IJ’s conclusion that Chen’s supporting witness was not credible is
supported by the improbability that she and Chen would not have discussed over the past two
years their experiences as Christians persecuted in China and by the lack of detail in her
testimony regarding her conversations with Chen about Christianity. Finally, the IJ’s rejection of
5

We recognize that the REAL ID Act requires significant deference to an IJ’s credibility
determination, but we do not defer to an unreasonable determination that an immigrant is not
credible. See Slyusar v. Holder, 740 F.3d 1068, 1074–75 (6th Cir. 2014). As other jurists have
emphasized, asylum seekers “often confuse the details of particular incidents, including the time
or dates of particular assaults and which specific actions occurred on which specific occasion;
thus, the ability to recall precise dates of events years after they happen is an extremely poor test
of how truthful a witness’s substantive account is.” Id. at 1075 (internal quotation marks
omitted) (quoting Yaogang Ren v. Holder, 648 F.3d 1079, 1085–86 (9th Cir. 2011)).
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the documentary evidence Chen submitted is supported by a clearly articulated reason suggesting
that important pieces of that evidence were fabricated. The IJ’s conclusion that Chen, his
witness, and his documentary evidence are not credible is supported by substantial evidence.
Consequently, Chen cannot demonstrate that the evidence presented to the IJ compels a different
result.
The adverse credibility finding is fatal to Chen’s withholding of removal claim (as it
would be also to Chen’s asylum claim were we to have jurisdiction to reach that claim). See
Slyusar v. Holder, 740 F.3d 1068, 1072 (6th Cir. 2014). We must deny Chen’s petition for
review challenging the IJ’s denial of Chen’s withholding of removal claim.
C. CAT
Chen does not raise his CAT claim before us. Therefore, it is waived. See Bi Feng Liu v.
Holder, 560 F.3d 485, 489 n.4 (6th Cir. 2009).
III. CONCLUSION
For the foregoing reasons, we DISMISS for lack of jurisdiction the petition for review of
Chen’s asylum application, and we DENY the remainder of his petition for review.

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