Chao Keng Chen v. Ashcroft

Dec 18, 2003
02-60981
Versions:83 F. App'x 672

A. Don Forester, A. Don Forester & Associates, Houston, TX, for Petitioner.

Blair T. O’Connor, Thomas Ward Hussey, Director, Emily Anne Radford, Assistant Director, John Ashcroft, US Department of Justice, Washington, DC, Hipólito Acosta, US Immigration & Naturalization Service, Houston, TX, Caryl G. Thompson, US Immigration & Naturalization Service, New Orleans, LA, for Respondent.

PER CURIAM:*

Chao Keng Chen (“Chen”), a citizen of China, petitions for review of an order from the Board of Immigration Appeals (“BIA”) summarily affirming the immigration judge’s (“IJ”) decision to deny his application for asylum, withholding of removal, or for relief under the Convention Against Torture. Chen argues that the IJ made an improper adverse credibility determination and that the IJ considered impermissible hearsay evidence to support his finding of adverse credibility. Finally, Chen has filed a motion requesting this court to remand to the BIA pursuant to 28 U.S.C. § 2347(c) for consideration of additional evidence, or, in the alternative, to hold his case in abeyance pending the BIA’s decision on his motion to reopen.

The IJ’s finding that Chen was not credible is a reasonable interpretation of the record and the conclusion that Chen was credible is not compelled by the evidence. See Chun v. INS, 40 F.3d 76, 79 (5th Cir.1994). Because Chen failed to exhaust his administrative remedies with regard to the hearsay issue, this court is precluded from addressing it. See Wang v. Ashcroft, 260 F.3d 448, 452 (5th Cir.2001). Under the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”) transitional rules, a court may not order the taking of additional evidence under § 2347(c). See IIRIRA § 309(c)(4)(B). The court declines to hold this case in abeyance pending the BIA’s ruling on Chen’s motion to reopen, as the motion to reopen does not affect the finality of the deportation order. See Mamoka v. INS, 43 F.3d 184, 187 (5th Cir.1995).

Accordingly, the petition for review and the motion are DENIED.

James William Craig, Phelps Dunbar, Gary Keith Silberman, Cynthia Ann Stewart, Jackson, MS, for Petitioner-Appellant.

Marvin L. White, Jr., Office of the Attorney General for the State of Mississippi, Jackson, MS, for Respondents-Appellees.

ON PETITION FOR REHEARING

PER CURIAM:*

Petitioner-Appellant Ricky R. Chase, a Mississippi death row inmate, petitions for panel rehearing following our affirmance of the district court’s judgment denying his 28 U.S.C. § 2254 petition. Chase contends that our decision is irreconcilable with the Supreme Court’s recent decision in Wiggins v. Smith, — U.S. —, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), and that the Mississippi Supreme Court’s decision was an objectively unreasonable application of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), in light of Wiggins. Chase argues that defense counsel was ineffective in taking only “perfunctory steps” to investigate Chase’s mental capacity despite clear indications of his below-average intelligence and mental retardation, stating that the

Notes

*
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. 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.