                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-25-2004

Chen v. Atty Gen US
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-2978




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                                                     NOT PRECEDENTIAL

             UNITED STATES COURT OF APPEALS
                  FOR THE THIRD CIRCUIT


                           No. 02-2978




                       GUI CHUN CHEN,
                                  Petitioner

                                v.

                       JOHN ASHCROFT,
               Attorney General of the United States,
                                                 Respondent




             On Petition for Review of an Order of the
                 Board of Immigration Appeals
                      (BIA No. A73-046-823)




          Submitted Pursuant to Third Circuit LAR 34.1(a)
                         August 1, 2003

Before: SCIRICA, Chief Judge, RENDELL and AMBRO, Circuit Judges

                    (Filed: February 25, 2004)


                   OPINION OF THE COURT
SCIRICA, Chief Judge.

         Deportation proceedings were initiated under 8 U.S.C. § 1251(a)(1)(A) against Gui

Chun Chen, a native citizen of China who entered the United States illegally. The

Immigration Judge found Chen removable and denied his application for asylum,

withholding of removal, and voluntary departure. On June 19, 2002, the Board of

Immigration Appeals issued an affirmance without opinion. Chen filed this petition for

review. We held the case c.a.v., pending the outcome of Dia v. Ashcroft, 353 F.3d 228

(3d Cir. 2003) (en banc). Under Dia, we will deny Chen’s petition and affirm the BIA’s

order.

                                             I

         On July 24, 1996, the INS issued an order to show cause, charging Chen as

deportable for having entered the United States without authorization. Chen sought relief

in the form of political asylum, withholding of removal, or alternatively, voluntary

departure. Chen based his application for asylum on China’s coercive population control.

         The Immigration Judge found Chen’s testimony “inconsistent with the written

applications and question[ed] the credibility of [Chen’s] claim.” Accordingly, the

Immigration Judge denied all of Chen’s claims for relief. Chen appealed to the BIA, and

under the streamlining provisions of 8 C.F.R. § 1003.1(a)(7), it affirmed the Immigration

Judge’s decision without opinion, stipulating that the Immigration Judge’s decision was

the final agency determination.



                                             2
         Chen appeals challenging the legality of the streamlining regulations and

questioning whether it was lawful for the BIA to decide to affirm the Immigration

Judge’s order without opinion for his case.1

                                               II

         Chen challenges the streamlining regulations’ affirmance without opinion

procedures. See 8 C.F.R. § 1003.1(a)(7). We upheld the validity of the streamlining

provisions in Dia, 353 F.3d at 245 (“[T]he streamlining provisions and the BIA’s

issuance of an [affirmance without opinion] . . . did not violate either the INA or the

Constitution.”). We further held: “[T]he fact that the review is done by one member of

the BIA and that the decision is not accompanied by a fully reasoned BIA decision may

be less desirable from the petitioner’s point of view, but it does not make the process

constitutionally ‘unfair.’” Id. at 243-44. Accordingly, Chen’s facial challenge to the

streamlining provision fails.2

                                               III

         Chen urges us to review whether it was lawful for the BIA to streamline his case.

The BIA’s decision to apply the streamlining regulations to a particular case is a matter

committed to its discretion. But where the BIA adopts the Immigration Judge’s decision



   1
       We have jurisdiction over orders of removal under 8 U.S.C. § 1252.
   2
    To prevail in a facial challenge to a regulation, a petitioner “must establish that no set
of circumstances exists under which the [regulation] would be valid.” Reno v. Flores,
507 U.S. 292, 301 (1993) (internal quotation omitted).

                                               3
as its own, we review the merits by reviewing the Immigration Judge’s decision as the

final decision of the agency. See Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir. 2002).3

       The Immigration Judge’s determination that Chen was not eligible for asylum must

be upheld if “supported by reasonable, substantial, and probative evidence on the record

considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992) (internal

quotation omitted). Under this deferential standard, the findings must be upheld unless

the evidence not only supports a contrary conclusion, “but compels it.” Id. at n.1

(emphasis in original). Pure questions of law concerning the INA are reviewed de novo.

Ladha v. INS, 215 F.3d 889, 896 (9th Cir. 2000). Alleged due process violations are also

reviewed de novo. Castillo-Perez v. INS, 212 F.3d 518, 523 (9th Cir. 2000).

       Here, the record shows that the Immigration Judge’s findings are supported by

substantial evidence, and his legal conclusions are correct. Particularly, the record

supports the Immigration Judge’s conclusions that Chen failed to establish that his wife

had been forcibly sterilized. The record also supports the finding of certain

inconsistencies in Chen’s application and testimony. Moreover, there is no evidence that




   3
    As the Seventh Circuit noted, “[I]t makes no practical difference whether the BIA
properly or improperly streamlined review of [petitioner’s] case. Since we review
directly the decision of the [immigration judge] when a case comes to us from the BIA
pursuant to § 1003.1(a)(7), our ability to conduct a full and fair appraisal of the
petitioner’s case is not compromised, and the petitioner’s due process rights are not
violated.” Georgis v. Ashcroft, 328 F.3d 962, 967 (7th Cir. 2003) (footnote omitted).

                                             4
the Immigration Judge violated Chen’s due process rights by failing to adequately

consider all relevant documentary evidence. We find no error.

                                             IV

         For the foregoing reasons, we will deny Chen’s petition and affirm the BIA’s

order.




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