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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13973
Non-Argument Calendar
____________________
JIA XIN CHEN,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A098-501-629
____________________
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21-13973 Opinion of the Court 2
Before WILSON, TJOFLAT, and ANDERSON, Circuit Judges.
PER CURIAM:
Jia Chen seeks review of the Board of Immigration Appeals’
(“BIA”) final order affirming the Immigration Judge’s (“IJ”) denial
of withholding of removal under INA § 241(b)(3), 8 U.S.C.
§ 1231(b)(3). He argues that he provided credible testimony
regarding past persecution and that he established a well-founded
fear of future persecution. We deny his petition.
I.
Chen, a native and citizen of China made three unsuccessful
attempts to enter the United States in July, August, and September
of 1988. In October of 1999, Chen finally succeeded in entering the
United States. In March of 2006, he was served with a Notice to
Appear (“NTA”), which charged him with being removable under
INA § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i), as an alien who
had entered the United States without admission or parole. Chen
admitted the allegations contained in the NTA and conceded
removability.
Chen filed an application for asylum, withholding of
removal, and Convention Against Torture (“CAT”) relief in
November 2006. He indicated he was seeking asylum and
withholding of removal based on political opinion and
membership in a particular social group. Specifically, he claimed
that he faced persecution based on his violation of China’s family
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21-13973 Opinion of the Court 3
planning policy and his support of Falun Gong. 1 He asserted that
if he were sent back to China, the “Chinese government would
arrest [him] for sentence, detention, further persecution and
punishment,” and he “would lose [his] personal freedom.” In
support of his application, Chen submitted a 2007 State
Department report on Chinese asylum claims, an affidavit from a
friend stating that Chen had been arrested in China due to his Falun
Gong activity, an affidavit from his ex-wife stating that Chen had
been beaten and detained by family planning officials in China, and
an affidavit from an American friend stating she had seen Chen
practicing Falun Gong in the United States.
The IJ denied Chen’s application. The IJ first found that
Chen’s application for asylum was time-barred. The IJ then found
that Chen was not credible and concluded that Chen was an
“economic opportunist” trying to find a place to work and earn
money rather than a refugee. Although Chen testified that he
feared persecution were he to return to China, the IJ noted that
Chen had previously told U.S. and Italian immigration authorities
that he had no fear of persecution were he to return to China; his
friend’s affidavit also failed to corroborate that Chen had been
beaten for supporting Falun Gong like he claimed. The IJ
concluded that it was more likely that Chen’s Falun Gong claim
was fabricated and noted that the Department of Homeland
1 Falun Gong is a religious movement originating in the 1990s.
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21-13973 Opinion of the Court 4
Security (“DHS”) had submitted evidence to suggest that many
Falun Gong claims are fabricated.
Chen timely appealed to the BIA. Chen argued that the IJ’s
adverse credibility finding was clearly erroneous as it was based on
the belief that many claims pertaining to Falun Gong are
fabricated; he also argued that the IJ’s statement that Chen was an
“economic opportunist” was inappropriate. The BIA affirmed the
denial of asylum but reversed as to the IJ’s adverse credibility
finding, finding that it was clearly erroneous because it was based
in “large part, on generalized information that since many Falun
Gong claims are fabricated by smugglers, it is more likely than not
this is also the situation in the present case.” The BIA also found
that the IJ erred in labeling Chen an “economic opportunist.” The
BIA remanded the case to the IJ to further assess Chen’s application
for withholding of removal and CAT protection.
On remand, DHS submitted Chen’s sworn statement
concerning his September 1998 attempt to enter the United States.
In it, he stated that he was attempting to enter the United States to
make money and stated he had no fear of returning to China. DHS
also submitted the State Department’s 2016 Religious Freedom
Report for China, which indicated that there were a series of cases
in which prosecutors declined to press charges against Falun Gong
practitioners. Chen himself submitted the State Department’s 2015
Religious Freedom Report for China, which indicated that Falun
Gong members “did not report any incidents of discrimination” in
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21-13973 Opinion of the Court 5
Hong Kong that year and regularly set up informational sites in
public venues in Macau 2 without incident.
The IJ once again denied Chen’s applications for
withholding of removal and CAT protection. The IJ stated that his
original adverse credibility determination was based on Chen’s
multiple attempts to enter the United States, during which he
expressed no fear of returning to China, his ability to fly out of
China under his own name, his denial of any fear of returning to
China when questioned by Italian authorities, and his friend’s
failure to corroborate the beating Chen allegedly received for
supporting Falun Gong.
Based on the additional evidence presented on remand, the
IJ then found that (1) Chen had lied about where he worked and
resided in the United States; (2) Chen’s listed residencies on his
asylum application did not correspond to the information provided
in his written statement or his testimony before the court; (3) Chen
offered inconsistent testimony regarding the timing of his alleged
beating by Chinese family planning officials; (4) Chen’s testimony
concerning the persecution he experienced from practicing Falun
Gong differed from his asylum statement; (5) Chen’s testimony
regarding his 1999 return to China differed from the facts included
on his asylum application; and (6) Chen’s testimony regarding his
practice of Falun Gong was highly generalized. Accordingly, the IJ
determined that Chen’s claim that he would face persecution if
2 Macau is a special administrative region of China.
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21-13973 Opinion of the Court 6
returned to China was not credible. The IJ also denied Chen’s
claims for withholding of removal and CAT protection on the
merits. 3
Chen once again appealed to the BIA. The BIA summarily
affirmed the results of the IJ’s decision.
II.
We may only review a final order of removal if the
petitioner has exhausted all administrative remedies that were
available as of right. INA § 242(d)(1), 8 U.S.C. § 1252(d)(1). Thus,
we lack jurisdiction to consider unexhausted issues and arguments
that were not presented to the BIA. Jeune v. U.S. Att’y Gen., 810
F.3d 792, 800 (11th Cir. 2016).
We review only the decision of the BIA, except to the extent
that the BIA expressly adopted or explicitly agreed with the opinion
of the IJ. Ayala v. U.S. Att’y Gen., 605 F.3d 941, 947–48 (11th Cir.
2010). Insofar as the BIA adopts the IJ’s reasoning, we review the
IJ's decision as well. Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1230
(11th Cir. 2006).
3 With respect toChen’s claim that he faced persecution on the basis of “other
resistance” to China’s family planning policy, the IJ found that Chen had not
met his burden in demonstrating that his past harm rose to the level of
persecution, nor had he expressed any fear of future persecution. With respect
to Chen’s claim that he would face persecution based on his practice of Falun
Gong were he returned to China, the Court found that Chen could reasonably
relocate within China to avoid harm.
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21-13973 Opinion of the Court 7
We review credibility determinations under the substantial
evidence test. Chen, 463 F.3d at 1230–31. The trier of fact must
determine credibility, and we may not substitute our judgment for
that of the BIA with respect to credibility findings. D-Muhumed v.
U.S. Att’y Gen., 388 F.3d 814, 818 (11th Cir. 2004). While a
credibility determination may not be based on speculation and
conjecture, an IJ has broad discretion to assess an applicant’s
credibility, and the IJ need only provide specific and cogent reasons
supporting an adverse credibility determination. Xiu Ying Wu v.
U.S. Att'y Gen., 712 F.3d 486, 493–94 (11th Cir. 2013). In fact, we
will reverse the IJ’s credibility findings “only if the evidence
compels a reasonable fact finder to find otherwise.” Chen, 463 F.3d
at 1231 (quotation marks omitted).
III.
Here, this Court lacks jurisdiction to review any challenge
to most of the bases for the adverse credibility determination
because Chen did not present such challenges to the BIA and
therefore failed to exhaust them. 4 Jeune, 810 F.3d at 800. His
challenge before the BIA was limited to a claim that
4 Chen also never challenged the IJ’s determination that he failed to timely file
his asylum application. As such, that issue is not before the Court. Similarly,
because Chen makes only passing references to the legal standard for CAT
protection, he has not preserved the issue for review. See Lapaix v. U.S. Att’y
Gen., 605 F.3d 1138, 1145 (11th Cir. 2010) (passing references to issues are
insufficient to raise a claim for appeal).
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21-13973 Opinion of the Court 8
The IJ incorrectly states that the BIA did not agree
with his previous credibility determination “based on
generalized information” of claims of Falun Gong
being fabricated by smugglers. This is not true as the
brief written by previous counsel discussed all the
issues in the Judge’s previous decision. The judge
then re-lists all the previous reasons he found [Mr.
Chen] incredible. For example, he again lists [Mr.
Chen’s] address issues and multiple attempts to enter
the United States []. None of these factors have by the
Judge were found to have merit by the Board.
However, on remand the IJ based his decision on “additional
evidence concerning” “issues relating to [Chen’s] credibility,”
including inconsistent testimony regarding the timing of his alleged
beating by Chinese family planning officials and the persecution he
experienced as a result of practicing Falun Gong. These
unchallenged bases provided specific and cogent reasons for the
adverse credibility determination and, thus, constituted substantial
evidence for it. See Xiu, 712 F.3d at 493–94. We certainly cannot
say that the evidence “compels” us to reverse the IJ’s credibility
finding. Chen, 463 F.3d at 1231. And although an IJ has a duty to
consider other evidence produced by an asylum applicant, even
when the applicant is found to be not credible, Forgue v. U.S. Att’y
Gen., 401 F.3d 1282, 1287 (11th Cir. 2005), “[a]n adverse credibility
determination coupled with a lack of corroborating evidence for a
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claim of persecution means that the applicant’s claim fails.”
Lyashchynska v. U.S. Att’y Gen., 676 F.3d 962, 967 (11th Cir. 2012).
Chen has not pointed to any corroborating evidence indicating that
he was subject to past persecution. 5 Accordingly, we deny his
petition.
PETITION DENIED.
5We note that even if the IJ had found Chen credible, Chen failed to exhaust
any challenge to the IJ’s determination that it would be reasonable for him to
relocate within China to avoid future harm. A non-citizen cannot demonstrate
that his life or freedom would be threatened if the IJ finds that he could avoid
a future threat to his life or freedom by relocating to another part of the
proposed country of removal and, under all the circumstances, it would be
reasonable to expect him to do so. 8 C.F.R. § 1208.16(b)(2).