IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 20, 2009
No. 08-60419
Summary Calendar Charles R. Fulbruge III
Clerk
SHI CHANG XING
Petitioner
v.
ERIC H HOLDER JR, U S ATTORNEY GENERAL
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A72 797 615
Before SMITH, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Shi Chang Xing petitions this court to review the order of the Board of
Immigration Appeals (BIA) affirming the immigration judge’s determination
that he is excludable and the denial of his application for asylum. Xing first
asserts that the immigration judge erred by refusing to revisit the charge that
he is excludable on grounds that he committed fraud in entering the United
States. Xing asserts that the immigration judge should have reconsidered the
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
No. 08-60419
finding of fraud because he received ineffective assistance of counsel from his
then-attorney, Robert E. Porges, who subsequently was convicted on charges
related to alien smuggling. Because Xing did not raise the instant issue before
the BIA, we lack jurisdiction to consider it. See 8 U.S.C. § 1252(d)(1); Wang v.
Ashcroft, 260 F.3d 448, 452-53 (5th Cir. 2001).
Xing also challenges the BIA’s denial of asylum on grounds that he failed
to establish a well-founded fear of persecution. Because the immigration judge’s
decision affected the BIA’s decision, we review both. See Zhu v. Gonzales, 493
F.3d 588, 593-94 (5th Cir. 2007). Xing asserts that he has an objective fear of
being sterilized by the Chinese government because he has three children who
were born while he was in the United States. He cites letters in the record from
his family members and a neighbor who claim to have been forcibly sterilized
after they violated China’s one-child rule. The immigration judge denied
asylum because he found that Xing was not credible.
The record does not compel a contrary conclusion. Xing admitted that he
made multiple misrepresentations and filed false applications to obtain
government benefits, including the attachment of a false letter to an application
for alien employment certification. In addition, the State Department’s 2004
Profile of Asylum Claims and Country Conditions for China indicates that,
although Chinese citizens with U.S.-born children “receive[] no special treatment
under family planning laws,” the sanctions imposed do not include forced
sterilization. The report notes that “U.S. diplomats in China are not aware of
any cases in which returnees from the United States were forced to undergo
sterilization procedures on their return.” Accordingly, we affirm the adverse
credibility determination and the denial of Xing’s asylum claim. See Chen v.
Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006); Mwembie v. Gonzales, 443 F.3d
405, 410 (5th Cir. 2006).
The petition for review is DENIED.
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