Bin Jing Chen v. Eric H. Holder, Jr.
776 F.3d 597
| 8th Cir. | 2015Background
- Chen, a Chinese national who entered the U.S. without inspection in the late 1990s, applied for asylum (April 2009), withholding of removal, CAT protection, cancellation of removal, and earlier sought a U visa. Her asylum officer referred the asylum application to immigration court as untimely.
- Chen testified that she fled because her mother was arrested in China for Christian religious activity; Chen later baptized in China and attended U.S. churches intermittently, providing some corroborating affidavits.
- The IJ found multiple material inconsistencies in Chen’s testimony and application statements (arrival dates, travel mode, snakehead captivity, timing of church involvement and mailing religious materials), concluding her evidence was not credible.
- Chen asserted changed circumstances (Chinese officials responded to Christian booklets she sent in 2008) to excuse the one-year asylum filing bar; the IJ and BIA rejected that claim as not credible.
- On the merits, the BIA concluded (even assuming credibility except on changed-circumstances claims) that country-condition evidence and Chen’s family travel history did not show a more-likely-than-not risk of persecution or torture, and that she failed to show “exceptional and extremely unusual hardship” for cancellation of removal. The petition for review was denied.
Issues
| Issue | Plaintiff's Argument (Chen) | Defendant's Argument (Gov./BIA) | Held |
|---|---|---|---|
| Timeliness of asylum / changed circumstances | Mailing Christian booklets to China in 2008 caused Chinese government response, qualifying as changed circumstances excusing late filing | IJ/BIA: Chen’s changed-circumstances account is not credible given inconsistencies and omissions | Court lacks jurisdiction to review BIA factual credibility finding on timeliness; denial of timeliness stands |
| Adverse credibility determination | Discrepancies were innocent mistakes and record not fairly considered | IJ/BIA: numerous material, evolving inconsistencies warranted adverse credibility finding | Court treats this as discretionary factual finding and lacks jurisdiction to disturb it |
| Withholding of removal and CAT relief (merits) | Would face persecution or torture in China on account of Christianity | BIA: Country conditions show limited/sometimes tolerated home churches; mother and children’s safe visits undermine fear claims | Substantial-evidence standard: BIA decision upheld — Chen failed to show likelihood of persecution or torture |
| Cancellation of removal (hardship) | Children would suffer exceptional and extremely unusual hardship, especially if father also removed | BIA: Record does not demonstrate the requisite exceptional and extremely unusual hardship; weighing of spouse’s status is discretionary | Court lacks jurisdiction to review discretionary hardship determination; denial upheld |
Key Cases Cited
- Purwantono v. Gonzales, 498 F.3d 822 (8th Cir. 2007) (distinguishes reviewable legal claims from unreviewable BIA factual/discretionary findings)
- Diaz-Perez v. Holder, 750 F.3d 961 (8th Cir. 2014) (treating BIA decision as final agency action for review)
- Quiñonez-Perez v. Holder, 635 F.3d 342 (8th Cir. 2011) (standard for substantial-evidence review of withholding/CAT findings)
- Hernandez-Garcia v. Holder, 765 F.3d 815 (8th Cir. 2014) (jurisdictional limits on review of discretionary hardship findings in cancellation cases)
- Garcia-Torres v. Holder, 660 F.3d 333 (8th Cir. 2011) (petitioner may not recast discretionary appeals as legal questions to create jurisdiction)