Lei Chen v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 9, 2020
• Docket: 18-72617
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION APR 9 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

LEI CHEN, No. 18-72617

Petitioner, Agency No. A213-045-055

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted March 4, 2020** Portland, Oregon

Before: FERNANDEZ and PAEZ, Circuit Judges, and BURGESS,*** District Judge.

Petitioner, Lei Chen, a native and citizen of the People’s Republic of China,

petitions for review of the Board of Immigration Appeals’ (“BIA”) dismissal of his

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Timothy M. Burgess, United States District Judge for the District of Alaska, sitting by designation. appeal from the Immigration Judge’s (“IJ”) denial of his application for asylum,1

withholding of removal,2 and Convention Against Torture (“CAT”)3 relief. We

deny the petition.

The BIA’s determination that an alien is not eligible for asylum must be

upheld “if ‘supported by reasonable, substantial, and probative evidence on the

record.’” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S. Ct. 812, 815, 117 L.

Ed. 2d 38 (1992). “It can be reversed only if the evidence presented . . . was such

that a reasonable factfinder would have to conclude that the requisite fear of

persecution existed.” Id.; see also Lianhua Jiang v. Holder, 754 F.3d 733, 738

(9th Cir. 2014). That same standard applies to adverse credibility determinations.

See Shrestha v. Holder, 590 F.3d 1034, 1039 (9th Cir. 2010).

We have reviewed the record and we are satisfied that the BIA’s decision

was supported by substantial evidence. The BIA agreed with the IJ’s

determination that Chen was not credible, based on numerous inconsistencies

between Chen’s testimony and the asylum officer’s notes from Chen’s Credible

1 8 U.S.C. § 1158(a)(1). 2 8 U.S.C. § 1231(b)(3)(A). 3 United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85, implemented at 8 C.F.R. § 1208.18.

2 Fear Interview.4 See 8 U.S.C. § 1158(b)(1)(B)(iii). These inconsistencies directly

bore on the seriousness of Chen’s claimed fear of persecution, and the IJ provided

clear reasons for rejecting Chen’s explanations for each inconsistency. See Silva-

Pereira v. Lynch, 827 F.3d 1176, 1185–86 (9th Cir. 2016); Shrestha, 590 F.3d at

1043–44. For example, his story regarding the massage parlor incident that

precipitated his leaving China was significantly changed and embellished when he

testified before the IJ. See Silva-Pereira, 827 F.3d at 1185–86. Moreover, the

corroborating evidence he submitted was not sufficient to rehabilitate his

credibility. See Garcia v. Holder, 749 F.3d 785, 791 (9th Cir. 2014). The IJ also

reasonably concluded that Chen’s voluntary return to China undermined his claim

that he feared persecution. Loho v. Mukasey, 531 F.3d 1016, 1018–19 (9th Cir.

2008). The evidentiary record does not compel a contrary conclusion.

We are also satisfied that, because Chen failed to provide credible testimony

establishing a well-founded fear of persecution, he has therefore failed to establish

a clear probability of persecution, as required for his withholding of removal claim.

4 We are satisfied that the asylum officer’s notes were sufficiently reliable and provided a useful comparison with Chen’s in-court testimony. See Lizhi Qiu v. Barr, 944 F.3d 837, 843 (9th Cir. 2019); Yan Liu v. Holder, 640 F.3d 918, 923 n.2 (9th Cir. 2011).

3 See Garcia, 749 F.3d at 791; Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.

2003).

Lastly, Chen has failed to establish eligibility for CAT relief. Claims for

CAT relief are “‘analytically separate’” from asylum and withholding of removal

claims. Garcia, 749 F.3d at 791. However, “a claim for relief under CAT may

still be rejected when the petitioner fails to provide evidence beyond those

statements that the IJ determined were not credible.” Lianhua Jiang, 754 F.3d at

740; see also Singh v. Lynch, 802 F.3d 972, 977 (9th Cir. 2015); Farah, 348 F.3d

at 1157. Chen’s CAT claim relied on the same evidence that was found to be not

credible. The BIA therefore correctly concluded that Chen failed to establish

eligibility for CAT relief.

Petition DENIED.