Fenxin Chen v. ERIC H. HOLDER, JR., Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FENXIN CHEN,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
No. 09-72318
Agency No. A099-880-979
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 13, 2014 **
San Francisco, California
Before: GRABER, W. FLETCHER, and PAEZ, Circuit Judges.
Fenxin Chen petitions for review of the order of the Board of Immigration
Appeals (“BIA”) affirming the immigration judge’s (“IJ”) denial of his post-REAL
ID Act of 2005 application for asylum, withholding of removal, and relief under
FILED
MAY 15 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C.
§ 1252, and we deny in part and dismiss in part his petition.
Substantial evidence supports the agency’s determination, under the
standards of the REAL ID Act, that Chen failed to present credible testimony in
support of his application. A credibility determination must consider the totality of
the circumstances and all relevant factors. The “inconsistency, inaccuracy, or
falsehood” on which an adverse credibility determination relies need not “go[] to
the heart of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Shrestha v.
Holder, 590 F.3d 1034, 1046 (9th Cir. 2010).
In making his adverse credibility finding, the IJ noted Chen’s “garbling of
religious belief and popular culture.” Chen testified that he did not know what
Easter was, but had told the asylum officer that it was the “turkey festival” and that
the turkey had saved the people of the United States. The IJ observed, on the other
hand, the “crispness” of Chen’s answer about spreading the gospel in which he
referred to a Biblical verse. Chen’s confusion regarding a key Christian holiday, in
contrast to his ability to recite passages from the Bible, led the IJ to conclude that
Chen was not testifying credibly, but that he had “simply memorized answers for
the benefit of his asylum hearing.” The BIA held that the IJ’s adverse credibility
finding was not clearly erroneous. On appeal, Chen’s explanation of the
discrepancy—that he was able to recite Bible verses because his intensive Bible
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study in the United States had given him detailed knowledge of scripture—does
not compel a contrary conclusion. See 8 U.S.C. § 1252(b)(4)(B).
Chen contends that the BIA erred in denying withholding of removal by
failing to take into account his active Christian activities in the United States. But
he did not raise that issue before the BIA; accordingly, we lack jurisdiction to
consider it. See, e.g., Sola v. Holder, 720 F.3d 1134, 1135–36 (9th Cir. 2013) (per
curiam) (explaining that failure to raise an issue before the BIA generally
constitutes a failure to exhaust and deprives the court of subject-matter
jurisdiction).
Finally, Chen’s claim for relief under CAT fails. Apart from the statements
the agency found not credible, his claim rests solely on broad statements about
China’s human rights record. Shrestha, 590 F.3d at 1048–49 (“[T]o reverse the
[denial of CAT relief,] we . . . have to find that the reports alone compelled the
conclusion that [the petitioner] is more likely than not to be tortured. (internal
quotation marks omitted) (third alteration in original)). And while the country
reports mention abuse of members of house church groups, they do not establish
that it is more likely than not that Chen would be tortured in China.
PETITION DISMISSED in part and DENIED in part.
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