UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

HAI OU CHEN, 

 Petitioner, 

v. 

ERIC H. HOLDER, JR., 

United States Attorney General, 

 Respondent. 

No. 14-9525 

(Petition for Review)

 

ORDER AND JUDGMENT*

 

Before KELLY, PORFILIO, and MATHESON, Circuit Judges. 

 

 Hai Ou Chen, a native and citizen of the People’s Republic of China, seeks 

review of the Board of Immigration Appeals’ (BIA) order of removal. We deny the 

petition for review. 

 Mr. Chen was smuggled across the Mexico-United States border on 

December 10, 2008. He was charged with removability as an individual who entered 

 

*

 After examining the briefs and appellate record, this panel has determined 

unanimously to grant the parties’ request for a decision on the briefs without oral 

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

September 23, 2014

Elisabeth A. Shumaker 

Clerk of Court
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the United States while not in possession of a valid border-crossing document. He 

conceded removability and requested asylum, withholding of removal, and protection 

under the Convention Against Torture (CAT). He claimed he would be persecuted 

and tortured if returned to China because he was a Falun Gong practitioner. 

 An immigration judge (IJ) held a hearing at which Mr. Chen and his brother 

testified. Mr. Chen was represented by counsel. He testified that while in China, 

because he was a Falun Gong practitioner, he was arrested, detained, interrogated, 

beaten, and subjected to police surveillance. In addition, he was fired from his job, 

which he believed was caused by his practice of Falun Gong and the police interest in 

him. Mr. Chen was questioned about his entry into the United States; his jobs in 

New York City, North Carolina, and Colorado; and the names of his employers and 

friends. Mr. Chen repeatedly testified that he did not know or had forgotten all of the 

particulars of these matters, such as whether he had crossed the border by boat or by 

truck, the name of the restaurant in New York where he had worked, and the names 

of his boss and friends in North Carolina where he lived for one and one-half years. 

Even when counsel attempted to refresh his recollection with a writing he made 

shortly after he crossed the border, Mr. Chen stated he still could not remember 

anything about his arrival in the United States. 

 At the conclusion of the hearing, the IJ indicated that the contradictions and 

gaps in Mr. Chen’s testimony cast serious doubt on his credibility. Accordingly, the 

IJ kept the record open to allow both sides to submit corroborating or clarifying 
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evidence. Mr. Chen submitted his own affidavit supplementing and explaining his 

testimony. The IJ accorded the affidavit no weight, a ruling Mr. Chen does not 

challenge. 

 The IJ found that Mr. Chen was not credible based on the totality of the 

testimony and the documentary evidence of record. Therefore, the IJ held that 

Mr. Chen had failed to carry his burden to show he was qualified for the relief 

requested. Mr. Chen appealed to the BIA, which dismissed the appeal, concluding 

that the numerous inconsistencies in Mr. Chen’s testimony supported the IJ’s 

credibility assessment. On appeal to this court, he challenges the adverse credibility 

finding. 

We review the BIA’s decision to determine whether it is supported by 

substantial evidence, considering the record as a whole. Neri-Garcia v. Holder, 

696 F.3d 1003, 1008 (10th Cir. 2012). “Agency findings of fact are conclusive 

unless the record demonstrates that any reasonable adjudicator would be compelled 

to conclude to the contrary.” Sidabutar v. Gonzales, 503 F.3d 1116, 1122 (10th Cir. 

2007) (internal quotation marks omitted). We neither reweigh the evidence nor 

assess witness credibility. Id. The BIA issued a single-member decision. Therefore, 

“although we will not affirm on grounds raised in the IJ decision unless they are 

relied upon by the BIA, we are not precluded from consulting the IJ’s more complete 

explanation of those same grounds.” Maatougui v. Holder, 738 F.3d 1230, 1237 n.2 

(10th Cir. 2013) (internal quotation marks, brackets and ellipsis omitted). 
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 On appeal, Mr. Chen challenges only the IJ’s determination that he was not 

credible, offering plausible explanations for his inconsistent testimony and inability 

to remember basic facts. He contends that he had no reason to lie about those matters 

to support his eligibility for asylum, so the testimony in question was irrelevant. He 

further argues that his testimony was corroborated by supporting documents, but he 

relies only on his own affidavit submitted after the IJ hearing, which the IJ gave no 

weight. 

As Mr. Chen acknowledges, a credibility determination may be based on 

inconsistencies, inaccuracies, or falsehoods, “without regard to whether an 

inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim.” 

8 U.S.C. §§ 1229a(c)(4)(C) (relief from removal in general), 1158(b)(1)(B)(iii) 

(asylum claims). Nevertheless, “the IJ must give specific, cogent reasons for 

disbelieving [the applicant’s testimony]. An IJ’s finding that an applicant’s 

testimony is implausible may not be based upon speculation, conjecture, or 

unsupported personal opinion.” Ismaiel v. Mukasey, 516 F.3d 1198, 1205 (10th Cir. 

2008) (citation and internal quotation marks omitted). 

After reviewing Mr. Chen’s testimony, the BIA upheld the IJ’s credibility 

determination based on “the cumulative nature of the numerous inconsistencies.” 

Admin. R. at 4. The IJ noted that Mr. Chen could remember the details of what had 

happened to him in China, but could not remember subsequent events in the United 

States. In addition, the IJ observed that while Mr. Chen might not be expected to 
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remember the exact address of the restaurant where he worked in New York, it was 

inexplicable that he could not recall its name. Similarly, the IJ found inexplicable 

Mr. Chen’s inability to remember the names of his boss in North Carolina or the 

friend with whom he lived. We determine that the IJ and BIA gave adequate reasons 

for finding Mr. Chen not credible. His appellate arguments ask us to reassess his 

credibility in light of his explanations for his inconsistent testimony and inability to 

remember basic facts, which we may not do, see Sidabutar, 503 F.3d at 1122. We 

conclude that the BIA’s holding that Mr. Chen failed to meet his burden to show he 

was eligible for asylum is supported by substantial evidence. 

We also conclude that the BIA’s adverse credibility determination is 

dispositive of Mr. Chen’s request for restriction on removal. “Having failed to 

establish that he is entitled to discretionary consideration for asylum, Mr. [Chen] has 

perforce failed to establish that he is entitled to [restriction on] removal, which, we 

have acknowledged, requires a petitioner to meet a higher standard than that for 

asylum.” Ustyan v. Ashcroft, 367 F.3d 1215, 1218 (10th Cir. 2004) (internal 

quotation marks omitted). 

Finally, we consider Mr. Chen’s request for CAT relief. “Article 3 of the 

Convention Against Torture prohibits the return of an alien to a country where it is 

more likely than not that he will be subject to torture by a public official, or at the 

instigation or with the acquiescence of such an official.” Cruz-Funez v. Gonzales, 

406 F.3d 1187, 1192 (10th Cir. 2005) (brackets and internal quotation marks 
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omitted). Because there is no such evidence in the record, Mr. Chen failed to carry 

his burden of proof, see 8 C.F.R. § 1208.16(c)(2), and the BIA correctly affirmed the 

IJ=s decision denying Mr. Chen’s request for CAT relief. 

 The petition for review is denied. 

 Entered for the Court 

 John C. Porfilio 

 Circuit Judge