Chen v. Holder - 744 F.3d 527 (7th Cir. 2014)

Rule:

Since the standard under the Convention Against Torture (CAT) is even higher than that for withholding of removal, it follows that an alien cannot prevail under the CAT if his claim for withholding of removal fails.

Facts:

Weiping Chen, a native and citizen of China, entered in the U.S. in October 2004 as a nonimmigrant visitor with authorization to stay until April 2005. He overstayed and later filed an application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). A Notice to Appear (NTA) was issued charging him with removability for staying longer than his visa permitted. The Immigration Judge (IJ) found that Chen did not apply for asylum until March 2008, more than three years after his arrival in the United States. She therefore concluded that his asylum application was untimely. The IJ considered Chen's arguments as to why he believed extraordinary circumstances excused his late filing—he did not speak English, he did not understand the law, and he did not have money to hire an attorney —but she found that these did not amount to extraordinary circumstances to excuse the untimely filing. The IJ further found that Chen had not met his burden of proving that he would be persecuted if removed to China, he could not show that it was more likely than not that he would suffer harm that met the definition of torture. The IJ ordered Chen removed to China. On appeal, the Board of Immigration Appeals (BIA) agreed with the IJ that Chen failed to timely file for asylum and failed to show extraordinary circumstances or changed circumstances justifying the delayed filing. It also agreed that Chen failed to provide sufficient credible evidence to establish a clear probability of persecution or torture. The BIA, therefore, dismissed the appeal, and Chen petitioned for review. 

Issue:

Under the circumstances, should Chen’s requests for withholding of removal and protection under the Convention Against Torture (CAT) be granted?  

Answer:

No.

Conclusion:

The court first held that it lacked jurisdiction to review the determination that Chen’s asylum application was untimely. As to Chen’s claim for withholding of removal, the court held that the IJ's finding was supported by the facts that Chen had not shown a clear probability that he would be persecuted if removed to China. Moreover, the BIA did not err when it affirmed the IJ's determination that the alien was required to produce or adequately explain the absence of evidence corroborating his claims and that he failed to do so. Chen pointed to no evidence that compelled the conclusion that corroborating evidence was unavailable. Since Chen’s claim for withholding of removal failed, he could not show that he was eligible for CAT relief.