NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 11a0710n.06

No. 10-3393

UNI TED STATES COURT OF A PPEAL S FOR THE SI XTH CI RCUI T

L ONG CHEN, Petitioner,

v.
ERI C H. HOL DER, J R., Attorney Gene ral, Respondent. ) ) ) ) ) ) ) ) ) ON PETI TI ON F OR REVI EW FROM A F I

NAL ORDER OF TH E BO ARD OF I MMI GRATI ON APPEAL S

Be fore : MARTI

N, MOORE, and COOK , Circuit J udg es.

BO YCE F. MARTI

N, J R. L ong Chen, a citizen of China, pet i t i o n s throug h counsel for revie w of an order of the Boa rd of I mmigration Appea ls (B I A) dismiss ing his appea l from a decision of an immigra tion j u d ge (IJ ) deny ing his applications for asy lum, withholding of remova l, and protec tion under the Convention Ag ainst Torture. Chen was bor

n in China in 1982. He enter ed the United States in 2006 without inspection and was subsequently place d in r emoval proce eding s. He a pplied for the a

bove re lief on the ba sis of his Christian relig ion, arg uing tha t he fe are d perse cution if he we re r eturne d to China. At a hearing held before the I J , C hen testi fied that his fathe r was soug ht by the authoriti es beca use of his Christian prosely tiz ing, causing him to g o into hiding. The authorities threa tened to

arr est Chen if he did not reve al his fathe r’s wher eabouts. Chen there fore left his family home to live with an aunt abou t t wo h o u rs aw ay

. He lived there for a few y ear s without problem, while continuing to prac tice his relig ion. His family eventua lly convince d the au th o r it ie s tha

t Chen’s fathe r had been killed in a fishing acc ident, and they wer e left alone. Chen’s par en t s p ai d t o h ave him
smugg led to the United States. His journey included stops in Hong Kong , Fr ance , Cuba, Haiti, the Dominican Republic, a

nd the B ahama s.No. 10-3393 - 2 -
The I J found that Chen was not cre dible, and that he had not proven that he filed his asy lum application within one y ear of his entry into the country

. Moreove r, the I J found that even if Chen’s application wer e timely and his testimony deeme d cre dible, he had not established that he was likely
to be perse cuted on the basis of his relig ion if he returne d to China. All relief was there fore denied. On appea l, the BI A reje cted the I J ’s adver se cre dibilit y finding but otherwise upheld the decision below. Ch en n o w ch alleng es the finding that his asy lum application was untimely

. We have jurisdiction to revie w a deter mination on the t i m el i n ess of an asy lum application only when a constitutional issue or one of statutory construction is involved. Almuhtaseb v. Gonzales , 453 F.3d 743, 748 (6th Cir. 2006). Chen compar es his case to that of Gjyzi v. Ashcroft , 386 F.3d 710, 714 (6th Cir. 2004), wher e th e BI A reje cted the I J ’s adver se cre dibilit y deter mination but never

theless disreg arde d the petitioner’s testimony reg arding the date of entry , which raised a due proce ss issue. We need not rea ch this issue, howeve r, beca use the I J and BI

A alternatively , and proper ly , reje cted Chen’s asylum claim on the merits. We must uphold a decision denying asy lum if it is “supported by rea sonable, substantial, and probative evidenc e.” INS v. Elias-Zacarias , 502 U.S. 478, 481 (1992) (q u o t i ng 8 U.S.C. § 1105a(a )(4) ). Thus, we may g rant a petition for revie w only if a “re asonable fac tfinder would have
to conclude that the requisite fea r o f perse cution exis ted.” Id. I n this case , the rec ord does not compel a finding that Chen has a well-founde d fea r of perse cution. I n fac t, he admitted that the rest of his family , including his mother and the aunt with whom he lived for a few y ear s, continue to live in China and prac tice their Christian relig ion without interfe renc e from the authorities. There fore , it is rea sonable to assume that Chen could do the same. See Pascual v. Mukase y , 514 F.3d 483, 489 (6th Cir. 2007). Be cause Chen failed to establish elig ibilit y for asy lum, he nece ssarily cannot meet the highe r burden of showing elig ibilit y for withholding of re m o v al. Kaba v. Mukase y , 546 F.3d 741, 751 (6th Cir. 2008). Simi larly , he did not show that it is more likely than not that he would be tortured, in orde r to be e ntitled to protection under the Conve ntion Aga inst Torture. Acc ording ly , the petition for re view is denied.