NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

XIAOLONG CHEN,

 Petitioner,

 v.

ERIC H. HOLDER, Jr., Attorney

General,

 Respondent.

No. 10-71845

Agency No. A099-458-435

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted August 13, 2014** 

San Francisco, California

Before: KOZINSKI, Chief Judge, McKEOWN and CLIFTON, Circuit 

Judges.

The BIA’s affirmance of the immigration judge’s adverse credibility finding

is supported by substantial evidence. The immigration judge, and the BIA, listed

FILED

NOV 21 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).
page 2

“specific instances in the record that form[ed] the basis of the agency’s adverse

credibility determination,” Shrestha v. Holder, 590 F.3d 1034, 1042 (9th Cir.

2010), including Chen’s inconsistent and inherently implausible testimony

regarding his travels to and within the United States, for which Chen could not

provide any documentation or corroborating evidence to support. The immigration

judge, and the BIA, also properly relied on Chen’s inconsistent statements

regarding when he discovered what happened to the people who were with him

when, he claims, the Chinese police interrupted his religious gathering. 

Considering the “totality of the circumstances,” 8 U.S.C. § 1158(b)(1)(B)(iii);

Shrestha, 590 F.3d at 1039–40, nothing in the record “compels a contrary

conclusion.” Singh v. Gonzales, 439 F.3d 1100, 1105 (9th Cir. 2006).

The BIA’s conclusion that Chen failed to provide reasonably obtainable

corroborating evidence—such as affidavits from his family or fellow Chinese

home church members, or any documentation of his travels—was supported by

substantial evidence. See 8 U.S.C. § 1158(b)(1)(B)(ii); Shrestha, 590 F.3d at

1047–48. Chen testified that he spoke to his father, who lived in China, every

three to five days since he arrived in the United States, and that his siblings lived in

the United Kingdom. Furthermore, although Chen testified that all evidence of his

travels was confiscated by the “snakehead” who allegedly arranged for Chen’s
page 3

seven-month trip to the United States, he then claimed that it was “impossible” to

contact the snakehead. The immigration judge, and the BIA, rejected Chen’s

explanation for why he had provided “absolutely zero documents corroborating his

account.” A reasonable trier of fact “would not be compelled to conclude that

corroborating evidence was unavailable.” Shrestha, 590 F.3d at 1048 (citing 8

U.S.C. § 1252(b)(4)).

We lack subject matter jurisdiction to review Chen’s argument that the

immigration judge “failed to give Chen an opportunity to explain” his inconsistent

testimony regarding where his siblings reside, and how Chen learned what had

happened to the people who were with him when, he claims, the Chinese police

interrupted his religious gathering, because Chen failed to raise this argument

before the BIA. See 8 U.S.C. § 1252(d)(1); Barron v. Ashcroft, 358 F.3d 674,

677–78 (9th Cir. 2004). 

The immigration judge’s refusal to accept Chen’s untimely submission of a

letter from Chen’s father didn’t amount to a denial of due process. Chen admitted

before the BIA that his submission of the letter was untimely, and that the

immigration judge “may properly deny admission” of untimely evidence. Chen

also doesn’t contest the BIA’s finding that he was given an opportunity to explain

why he submitted the letter in an untimely manner. Thus, Chen fails to show that
page 4

the immigration judge erred in rejecting the letter. See 8 C.F.R. § 1003.31(c); Lata

v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000). 

In the absence of credible testimony, there is no objective evidence to

support Chen’s asylum, withholding of removal and Convention Against Torture

claims. See Shrestha, 590 F.3d at 1048. 

Chen’s Motion to Hold Appeal in Abeyance pending resolution of his

request for prosecutorial discretion and a ruling on his wife’s alien relative petition

is denied. DHS has already declined Chen’s request to exercise prosecutorial

discretion and Chen can pursue the alien relative petition independently of his

petition for review. 

PETITION DENIED in part, DISMISSED in part.