Zhixin Chen v. Loretta Lynch , 634 F. App'x 116 ( 2015 )

Case: 14-60744 Document: 00513312113 Page: 1 Date Filed: 12/17/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-60744
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
December 17, 2015
ZHIXIN CHEN,
Lyle W. Cayce
Clerk
Petitioner
v.
LORETTA LYNCH, U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A088 292 355
Before HIGGINBOTHAM, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Zhixin Chen, a native and citizen of the People’s Republic of China,
petitions for review of a decision by the Board of Immigration Appeals (BIA)
adopting and affirming a decision of the immigration judge (IJ) finding him
removable and denying his requested forms of relief. The IJ found that Chen
was not credible and that he had therefore failed to establish his claim for
asylum, statutory withholding of removal, and withholding of removal under
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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the Convention Against Torture (CAT). The IJ determined that, even if Chen
had been credible, he had not established past persecution or a well-founded
fear of future persecution.
Chen challenges the adverse credibility determination made by the BIA
and IJ. He asserts that the BIA and IJ improperly based the credibility
determination “almost entirely” on his submission of a counterfeit marriage
certificate even though the marriage certificate had nothing to do with his
asylum claim. He maintains that the IJ’s ruling that his demeanor while
testifying supported an adverse credibility determination was not
substantiated. According to Chen, the BIA and IJ did not make their
credibility determinations based upon the totality of the circumstances as they
were required to do. Chen argues that the BIA and IJ erred by finding that he
had not substantiated his claims with corroborating evidence. He also
challenges the IJ’s alternative finding that, even if his testimony were credible,
he had not established past persecution or a well-founded fear of future
persecution.
When considering a petition for review, we have the authority to review
only the BIA’s decision, not the IJ’s decision, unless the IJ’s decision has some
impact on the BIA’s decision. Mikhael v. INS, 115 F.3d 299, 302 (5th Cir.
1997). We may review the IJ’s ruling as well as the BIA’s decision in this case
because the BIA adopted the IJ’s ruling. See Efe v. Ashcroft, 293 F.3d 899, 903
(5th Cir. 2002).
Before the BIA, Chen raised only his claims regarding the counterfeit
marriage certificate and the IJ’s alternative finding that, even if his testimony
were credible, he had not established past persecution or a well-founded fear
of future persecution. He did not raise his claims concerning the credibility of
his demeanor, whether the totality of the circumstances had been considered
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in the credibility determination, and whether he had substantiated his
testimony with corroborating evidence. Accordingly, we do not have
jurisdiction to consider these claims. See 8 U.S.C. § 1252(d)(1); Omari v.
Holder, 562 F.3d 314, 319 (5th Cir. 2009).
Chen argues that the BIA and IJ erred by making an adverse credibility
determination based upon the counterfeit marriage certificate. He maintains
that the marriage certificate was not related to his asylum claim and that he
had no reason to submit a counterfeit marriage certificate. He contends that
it was error for the BIA and IJ to rely on the counterfeit marriage certificate
in making their credibility determinations because there were no
inconsistencies between his asylum application and his testimony at the
asylum hearing and because there was no finding that he knew that the
marriage certificate was counterfeit.
An immigration court’s findings of fact are reviewed for substantial
evidence. Wang v. Holder, 569 F.3d 531, 536 (5th Cir. 2009). We may not
reverse an immigration court’s factual findings unless “the evidence was so
compelling that no reasonable factfinder could conclude against it.” Id. at 537.
It is the factfinder’s duty to make determinations based on the credibility of
witnesses, and we cannot substitute our judgment for that of the BIA or IJ
with respect to factual findings based on credibility determinations. Chun v.
I.N.S., 40 F.3d 76, 78 (5th Cir. 1994). However, an adverse credibility
determination still must be supported “by specific and cogent reasons derived
from the record.” Zhang v. Gonzales, 432 F.3d 339, 344 (5th Cir. 2005).
The Department of Homeland Security Forensic Document Laboratory
determined that the marriage certificate that Chen submitted was counterfeit.
While Chen asserted his disbelief that it could be counterfeit, he did not submit
any evidence showing that the marriage certificate was genuine. Although the
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marriage certificate was not germane to Chen’s asylum claim, under the REAL
ID Act, the BIA and IJ were entitled to rely upon any inconsistency or
discrepancy, not just those which went to the heart of the asylum claim.
See Wang, 569 F.3d at 538-39. While there is some precedent from other
circuits providing that the submission of counterfeit documents, by itself,
cannot be sufficient to support an adverse credibility finding if there is no
evidence that the alien knew that the submitted documents were counterfeit,
see Corovic v. Mukasey, 519 F.3d 90, 97-98 (2d Cir. 2008), this does not save
Chen’s asylum claim, as there were multiple other reasons supporting the
adverse credibility finding.
Contrary to Chen’s assertion, there was at least one inconsistency
between his asylum application and his testimony at the asylum hearing. In
his asylum application, Chen stated that when he complained to the factory
director about the factory director’s corruption, he was demoted to a janitorial
position. At the asylum hearing, however, he stated that he was demoted to a
position as a gate guard. When confronted with this discrepancy, Chen first
stated that part of a gate guard’s duties involved cleaning, then stated that his
asylum application was incorrectly translated by his attorney, and then
returned to his original explanation without ever providing a plausible
explanation for the inconsistency.
Despite stating that his wife had his neighborhood committee certificate
that prevented him from finding work because it stated that he had
participated in a protest, Chen did not produce that document, explaining only
that by the time his wife found that document, he thought it was too late. As
this was reasonably available corroborating evidence that Chen failed to
produce, the BIA and IJ were entitled to consider the lack of production of this
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document in making their credibility determinations. See § 1158(b)(1)(B)(ii);
Yang v. Holder, 664 F.3d 580, 584-87 (5th Cir. 2011).
Given these reasons and the IJ’s determination regarding Chen’s
demeanor, the adverse credibility determination was supported “by specific
and cogent reasons derived from the record.” Zhang, 432 F.3d at 344. The
totality of the circumstances does not compel a finding that Chen was credible,
and accordingly we will not disturb the adverse credibility determination. See
Wang, 569 F.3d at 537-39. As the adverse credibility determination was
supported by substantial evidence and was a sufficient ground for the BIA’s
ruling, we do not reach Chen’s challenge to the IJ’s alternative determination
that, even if his testimony were credible, Chen had not established past
persecution or a well-founded fear of future persecution. See Chun, 40 F.3d at
79.
PETITION FOR REVIEW DENIED IN PART AND DISMISSED IN
PART.
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