Dengyi Chen v. ERIC H. HOLDER, Jr., Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DENGYI CHEN,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 08-74710
Agency No. A078-230-062
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted August 5, 2013
Pasadena, California
Before: TALLMAN, CLIFTON, and CALLAHAN, Circuit Judges.
Dengyi Chen, a native and citizen of China, petitions for review of a
decision of the Board of Immigration Appeals affirming an immigration judge’s
denial of her applications for asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”).
FILED
AUG 07 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9 th Cir. R. 36-3.

-- 1 of 3 --

Substantial evidence supports the Board’s adverse credibility determination
based on material inconsistencies between Chen’s asylum declaration and her
hearing testimony, particularly as to her purported loss of consciousness. The
immigration judge and the Board provided “specific cogent reason[s]” for the
adverse credibility finding, and Chen has failed to demonstrate that “any
reasonable factfinder would necessarily conclude that [she] is eligible for relief
from deportation.” Chebchoub v. INS, 257 F.3d 1038, 1042–43 (9th Cir. 2001).
Chen claims that counsel at her removal hearing provided ineffective
assistance. Chen has not raised the issue before the Board, see Martinez-Zelaya v.
INS, 841 F.2d 294, 296 (9th Cir. 1988), nor has she complied with the procedural
requirements established by the Board in Matter of Lozada, 19 I. & N. Dec. 637
(BIA 1988). Counsel’s alleged ineffective assistance is not “obvious and
undisputed on the face of the record,” therefore compliance with Matter of
Lozada’s procedural requirements is not excused. See Reyes v. Ashcroft, 358 F.3d
592, 596–97 (9th Cir. 2004). Even if we reach the merits of the argument, Chen
does not explain what additional information her attorney could have elicited that
could be expected to have made a difference, so she has failed to demonstrate that
her representation at the hearing was “so inadequate that it may have affected the
outcome of the proceedings.” Ray v. Gonzales, 439 F.3d 582, 587 (9th Cir. 2006).
-2-

-- 2 of 3 --

Petition DENIED in part and DISMISSED in part.
-3-

-- 3 of 3 --