Shan Kun Chen v. Gonzales

239 F. App'x 401

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 31, 2007
• Docket: No. 06-72777
• Status: Published

Opinions

MEMORANDUM

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Shan Kun Chen, a native and citizen of China, petitions for review of the Board of Immigration Appeals’ (“BIA”) decision, affirming the Immigration Judge’s (“U”) order denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). To the extent we have jurisdiction, it is conferred by 8 U.S.C. § 1252.

Where, as here, the BIA states that it is reviewing for clear error, this Court looks to the IJ’s decision as a guide to what lay behind the BIA’s conclusion. See Kozulin v. INS, 218 F.3d 1112, 1115 (9th Cir.2000). We review for substantial evidence, Don v. Gonzales, 476 F.3d 738, 741 (9th Cir.2007), and we deny the petition for review in part, and dismiss in part.

Substantial evidence supports the IJ’s credibility finding based upon a discrepancy as to when Chen was followed by the police, because the discrepancy pertained to the arrest and detention on which Chen predicated his asylum claim. See id.; see also Chebchoub v. INS, 257 F.3d 1038, 1043 (9th Cir.2001).

The IJ further found that Chen’s testimony was faltering and unsure. In light of the “special deference” applied to such demeanor findings, we conclude that substantial evidence supports this credibility finding. See Singh-Kaur v. INS, 183 F.3d 1147, 1151 (9th Cir.1999).

While Chen claims that he was denied due process as a result of faulty translation, he has failed to demonstrate “that a better translation likely would have made a difference in the outcome.” See Gutierrez-Chavez v. INS, 298 F.3d 824, 830 (9th Cir.2002).

In the absence of credible testimony, Chen failed to establish eligibility for either asylum or withholding of removal. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003).

We lack jurisdiction to review the denial of Chen’s CAT claim, because he failed to exhaust the claim before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.