Last week, the Eighth Circuit issued its decision in Chen v. Holder. Chen applied for asylum, withholding of removal, protection under the Convention Against Torture (CAT), and cancellation of removal for non-lawful permanent residents. Chen's testimony and her documentary evidence conflicted regarding her date of entry, and her testimony about her travels to the United States was inconsistent. She also testified inconsistently regarding events in China that took place after she came to the United States. Because of these inconsistencies, the Immigration Judge determined that she had not demonstrated that she filed her asylum application within 1 year of her entry into the United States, or had she established the 1-year filing deadline should be tolled to changed circumstances in China. The Board of Immigration Appeals (Board) affirmed this credibility determination.
With regard to her withholding of removal and protection under the CAT, the Immigration Judge noted that evidence in the record demonstrated tacit acceptance of Christian house churches by the Chinese government. In addition, Chen's mother had continued to practice Christianity in China, and had not been harmed or threatened for years. Chen's children had visited China for substantial periods of time without being harmed or threatened. When considered with Chen's incredible testimony, the Immigration Judge determined that Chen failed to demonstrate a clear probability of persecution or torture in China. The Board affirmed these determinations as well.
With regard to her cancellation of removal application, the Immigration Judge found that Chen had not demonstrated the requisite exceptional and extremely unusual hardship to her U.S. citizen children. Though she had argued that as U.S. citizens, her children would not be entitled to government-funded education or health care, the Immigration Judge discredited her testimony due to its inconsistencies. The Board similarly affirmed this determination.
On appeal to the Eighth Circuit, Chen argued that the adverse credibility finding
was erroneous because it was "not based on a fair gleaning of the record" and because
inconsistencies in her testimony were simply "innocent mistakes." The court determined that these claims "amount[ed] to a quarrel with the [IJ's and] BIA's discretionary factual determination," and that therefore, it lacked jurisdiction to review whether Chen demonstrated changed circumstances that would provide an exception to the one year filing deadline.
Turning to Chen's applications for withholding of removal and protection under the CAT, the court acknowledged the evidence indicating that the Chinese government tolerates unsanctioned Christian groups, that Chen's mother had not been harmed despite continuing to practice Christianity, and that Chen's children had visited China without being harmed after she filed her applications for asylum, withholding of removal, and protection under the CAT. As such, substantial evidence supported the Board's denial of her applications.
In support of her appeal of the Board's denial of her cancellation of removal application, Chen argued that the Board committed "legal error" because it did not "truly take into account" what would happen to the children if their father were also removed from the United States and they had to go to China. The court found that this argument was simply a challenge to the Board's discretionary determination, not its application of the law. As such, the court had no jurisdiction to review the determination.
The full text of Chen v. Holder can be found here: http://media.ca8.uscourts.gov/opndir/15/01/133495P.pdf