FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JIE CUI, AKA Chet Chui,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney

General,

Respondent.

No. 08-72936

Agency No.

A096-231-179

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

February 5, 2013—Pasadena, California

Filed April 10, 2013

Before: Consuelo M. Callahan, Sandra S. Ikuta, and

Andrew D. Hurwitz, Circuit Judges.

Opinion by Judge Callahan
2 CUI V. HOLDER

SUMMARY*

Immigration 

The panel denied a petition for review from the Board of

Immigration Appeals’ denial, on adverse credibility grounds,

of asylum, withholding of removal, and protection under the

Convention against Torture to a native and citizen of China

who asserted a fear of persecution on account of his practice

of Da Zang Gong or “DZ Gong.” 

The panel held that substantial evidence supported the

immigration judge’s adverse credibility determination based

on pre-REAL ID Act standards. The panel explained that

petitioner’s travel to Mexico, his lack of efforts to then enter

the United States, and his voluntary decision to return to

China go to the heart of his asylum claim because they

undermine his assertions that he feared persecution. The

panel further explained that petitioner’s faulty memory of

whether he had to report to the police after an arrest, and his

vague, if not inconsistent, statements about whether he had to

report to the police when he returned to China were

problematic, and that under the circumstances, it was

reasonable to expect him to provide evidence to corroborate

his arrests and beatings or of the arrests and beatings of other

DZ Gong members.

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
CUI V. HOLDER 3

COUNSEL

Cindy S. Chang of Walnut, California, for Petitioner.

Michael F. Hertz, acting Assistant Attorney General;

M. Jocelyn Lopez Wright, Charles S. Greene, III (argued),

and Judith R. O’Sullivan, United States Department of

Justice, Office of Immigration Litigation, Washington, D.C.,

for Respondent.

OPINION

CALLAHAN, Circuit Judge:

Jie Cui, a native of China, seeks asylum, withholding of

removal, and relief under the Convention Against Torture

(“CAT”). Cui claims that he has been, and will be,

persecuted because of his practice of Da Zang Gong (“DZ

Gong”). The Immigration Judge (“IJ”) and Board of

Immigration Appeals (“BIA”) found that Cui was not

credible. We affirm because the adverse credibility

determination is adequately supported by the record and goes

to the heart of his claim.

I

Cui was born in China in 1969 and attended Harbin

University of Science and Technology, majoring in

mechanical engineering. While at the university he joined the

student democracy movement and helped lead

demonstrations. Cui states that he was then investigated by

the Communist Party and used as an example of having an

incorrect “deep western freedom belief.”
4 CUI V. HOLDER

In 1992, after graduation, Cui was assigned to a machine

factory but, because of his record in the student movement, he

“was given nothing to do but receive political belief

education everyday.” He claims he was attacked by a 

Communist party officer in the factory because he secretly

listened to a banned radio program.

In 1994, Cui met Master Yu Qi, the leader of DZ Gong,

a teaching of Tibetan Buddhism. Cui was curious about the

teaching and anxious to leave the factory, so he became a

disciple of Master Yu. From 1994 to 1999, Cui traveled to

different places in China arranging for and holding classes in

DZ Gong.

Cui claims that in October 1999, two police officers came

to his house, told him that DZ Gong was now a banned

religious organization, confiscated his DZ Gong materials,

and told him not to conduct further activities relating to DZ

Gong. Cui states that thereafter authorities frequently came

to his house to threaten him and to discourage him from

practicing DZ Gong, but he continued to practice in secret.

Cui alleges that one night in December 1999, when he

was teaching a DZ Gong beginners’ class, four police officers

came in and beat everyone with batons. He states that the

officers arrested him and the other DZ Gong leader and took

them to the police station where they were beaten, threatened

and interrogated. Cui asserts that the officers questioned him

about the whereabouts of Master Yu, and beat him when he

said he did not know where Master Yu was. Cui was released

after two weeks and warned that if he continued to practice

DZ Gong, he would be detained even longer.
CUI V. HOLDER 5

In his application for political asylum, Cui claimed that

“[b]ecause of the tense atmosphere inside the country, on

February 10, 2000, I and two other Gong teachers escaped to

Mexico. Our purpose was to find a way to come to the

United States and seek religious and political asylum.”

Cui claims that during his two years in Mexico he

endured hardships because of the language barrier, different

religious beliefs, a lack of friends and relatives, and the high

cost of living. He further stated that he could not find a way

to enter the United States and that it was difficult to promote

DZ Gong in Mexico. He claims that with their money

running out and feeling homesick, when he and his colleagues

heard that police in China were not arresting people anymore,

they returned to China in May 2002 to reunite with their

families.

Cui states that just two days after he arrived home, the

police came to his home to arrest him, but they did not find

him because he was cleaning the basement. He then went to

his home town in a farm village, where he thought he would

be safe. However, a week later on May 21, 2002, when he

was teaching DZ Gong, the police came and arrested him.

Cui alleges that he was detained for two weeks in one

facility and beaten. He states that the authorities had learned

of his prior participation in the student movement and asked

him questions about his role in the student movement as well

as the whereabouts of Master Yu. He claims that they pushed

his head into a bucket of water until he almost drowned, beat

him with a baton on the back of his head until he passed out,

made him stand outside in his underwear for a whole evening

to feed the mosquitos, and on occasion denied him food.
6 CUI V. HOLDER

Cui alleges that in June 2002, he was transferred to

another jail, where he was again interrogated, beaten and

tortured. He asserts that he was released at the end of

November 2002 and warned that if he continued to practice

DZ Gong he would again be arrested and detained for even

longer.

Cui decided that DZ Gong would never be allowed in

China, and after discussing the matter with his family, he left

China for Mexico in March 2003, with the intent of seeking

asylum in the United States. Within days of his arrival in

Tijuana, Cui arranged to be smuggled into the United States. 

He relates that early in a morning he was hidden under a van,

but half an hour later he was discovered by Border Patrol

agents.

II

A Notice to Appear charged Cui with being removable for

having entered the United States without a valid entry

document. Cui eventually applied for asylum,1and after

several continuances had a hearing before an Immigration

Judge (“IJ”). Cui testified and offered two witnesses: Master

Yu and Mr. Shuang-Xi Yang. Both were practitioners of DZ

Gong who had been granted asylum. Both had known Cui in

China, but could not testify as to Cui’s particular claims of

1 Usually, an asylum application must be filed within a year of a

person’s entry into the United States. 8 U.S.C. § 1158(a)(2)(B). An

untimely application may be considered when the Attorney General finds

that extraordinary circumstances justify the delay in filing. 8 U.S.C.

§ 1158(a)(2)(D). Here, the IJ found the requisite extraordinary

circumstances, noting that Cui’s “failure to file his asylum application

within one year of his arrival was beyond [his] control.” The Government

does not challenge this finding.
CUI V. HOLDER 7

persecution. After a final hearing on August 27, 2007, the IJ

noted that Cui admitted the allegations in the Notice to

Appear, found Cui not to be credible, and denied him asylum,

withholding of removal, and CAT relief. The IJ based his

adverse credibility determination on five inconsistencies, two

material omissions, nine instances of inherently implausible

testimony, and a lack of corroborative evidence. Cui

appealed to the BIA.

The BIA issued an opinion finding that the IJ’s adverse

credibility determination was not clearly erroneous and

dismissing the appeal. The BIA stated:

While we do not agree with the whole of the

credibility determination – particularly with,

e.g., the finding that the respondent was

inconsistent with respect to when he got his

visa to visit Mexico in 1999 and about where

he was when he was discovered listening to

the unauthorized radio program – we find that

overall, other discrepancies, implausibilities,

and the lack of corroborative evidence found

by the Immigration Judge are sufficient to

satisfy us that no clear error was committed in

the rendering of the adverse credibility

determination.

The BIA observed that the IJ correctly noted that Cui’s

written statement failed to mention that he was required to

report weekly to the police station after his 1999 detention

ended or that he was under police supervision when he left

China in 2003. The BIA noted that these allegations were

significant because Cui contends that he had to “escape”

China and that the police were interested in him when he
8 CUI V. HOLDER

returned to China in 2003. The BIA further noted the lack of

any corroborative evidence of Cui’s arrests or of the ban on

DZ Gong. It also agreed with the IJ’s determination that it

was “implausible that someone would travel all the way from

China to Mexico, with the claimed purpose of applying for

asylum in the United States, and ultimately simply return to

China despite fears of harm awaiting him there.”

The BIA denied Cui’s request for withholding of removal

and for CAT relief, commenting: “[I]n the absence of credible

evidence reflecting any reason why the Chinese government

would seek [Cui], there is no evidence of a clear probability

of torture at the instigation of, or with the consent or

acquiescence of, current government officials.”

III

Where, as here, the BIA’s decision incorporates part of

the IJ’s opinion as its own, we review both. Aquilar-Ramos

v. Holder, 594 F.3d 701, 704 (9th Cir. 2010) (citing MolinaEstrada v. I.N.S., 293 F.3d 1089, 1093 (9th Cir. 2002)). We

review the BIA’s findings of fact, including credibility

findings, for substantial evidence and uphold the BIA’s

findings unless the evidence compels a contrary result. 

Almaghzar v. Gonzales, 457 F.3d 915, 920 (9th Cir. 2006);

see also Shrestha v. Holder, 590 F.3d 1034, 1039, 1048 (9th

Cir. 2010). “While the substantial evidence standard

demands deference to the IJ, ‘[w]e do not accept blindly an

IJ’s conclusion that a petitioner is not credible. Rather, we

examine the record to see whether substantial evidence

supports that conclusion and determine whether the reasoning

employed by the IJ is fatally flawed.’” Gui v. I.N.S., 280 F.3d

1217, 1225 (9th Cir. 2002) (quoting Osorio v. I.N.S., 99 F.3d

928, 931 (9th Cir. 1996)).
CUI V. HOLDER 9

The applicant bears the burden of establishing eligibility

for asylum through credible evidence. See Liu v. Holder,

640 F.3d 918, 925 (9th Cir. 2011); Singh v. Ashcroft,

367 F.3d 1139, 1142 (9th Cir. 2004); Ghaly v. I.N.S., 58 F.3d

1425, 1428 (9th Cir. 1995). To prevail, an applicant must

present substantial evidence that would support a finding that

“any reasonable adjudicator would be compelled to conclude

to the contrary.” 8 U.S.C. § 1252(b)(4)(B); Ali v. Holder,

637 F.3d 1025, 1029 (9th Cir. 2011). “We have held that the

uncorroborated testimony of the applicant, if credible, may be

sufficient to sustain the applicant’s burden.” See Jibril v.

Gonzales, 423 F.3d 1129, 1133 (9th Cir. 2005). “If the trier

of fact either does not believe the applicant or does not know

what to believe, the applicant’s failure to corroborate

testimony can be fatal to his asylum application.” Sidhu v.

I.N.S., 220 F.3d 1085, 1090 (9th Cir. 2000); see also Malhi v.

I.N.S., 336 F.3d 989, 993 (9th Cir. 2003).

Here, because Cui filed his asylum application prior to

May 11, 2005, the burden of proof provisions in the REAL ID

Act of 2005 do not apply. Instead, “[w]hen the IJ denies

asylum based ‘on an adverse credibility determination, he

must provide specific, cogent reasons to support his

determination . . . [which] cannot be peripheral, but rather

must go to the heart of petitioner’s claim.’” Don v. Gonzales,

476 F.3d 738, 741 (9th Cir. 2007) (quoting Desta v. Ashcroft,

365 F.3d 741, 745 (9th Cir. 2004)). In affirming the denial of

relief in Don, we explained:

Don’s inability to “state as to when it was that

this man who was the source of him having to

flee his country started to work for him” went

to the heart of Don’s claim because it

involved the very event upon which he
10 CUI V. HOLDER

predicated his claim for asylum. See

Chebchoub v. INS, 257 F.3d 1038, 1043 (9th

Cir. 2001) (explaining that inconsistencies in

the details of events that form the basis for the

asylum claim, specifically “testimony about

the events leading up to [petitioner’s]

departure,” go to the heart of the claim, and

support an adverse credibility finding); see

also Singh v. Gonzales, 439 F.3d 1100, 1108

(9th Cir. 2006) (affirming that “[a] single

supported ground for an adverse credibility

finding is sufficient if it relates to the basis for

petitioner’s alleged fear of persecution and

goes to the heart of the claim,” and “[a]n

inconsistency goes to the heart of a claim if it

concerns events central to petitioner’s version

of why he was persecuted and fled”)

(citations, alteration, and internal quotation

marks omitted).

476 F.3d at 741–42.

IV

Cui’s allegations, if true, might render him eligible for

asylum, but he has not demonstrated that the IJ’s credibility

finding is not based on substantial evidence in the record. 

Rather than cite to the record, Cui primarily argues that the

adverse credibility finding was based on misunderstanding

and misinterpretation of the facts and not on the totality of the

evidence. In support of his contention, Cui makes three legal

arguments. First, citing Damaize-Job v. I.N.S., 787 F.2d

1332, 1337 (9th Cir. 1986), Cui argues that discrepancies in

an applicant’s testimony cannot be viewed as attempts to
CUI V. HOLDER 11

enhance his claim of persecution if they have no bearing on

his credibility. Second, citing Lopez-Reyes v. I.N.S., 79 F.3d

908, 911 (9th Cir. 1996), he asserts that an applicant’s

testimony is not lacking in credibility simply because it

includes details not described in the asylum application. 

Third, citing Maini v. I.N.S., 212 F.3d 1167, 1175 (9th Cir.

2000), Cui argues that an IJ’s view of what a persecuted

person should include in his asylum application has no weight

in an adverse credibility finding. These arguments are

unavailing.

Cui’s challenge to the adverse credibility determination

fails to show that the determination was not supported by

substantial evidence. The IJ’s determination that Cui’s

account of his two-year stay in Mexico and decision to return

to China is incredible goes to the heart of his asylum claim. 

The IJ reasonably found that, if Cui’s reason for going to

Mexico was to escape political or religious persecution by

seeking asylum in the United States, he surely would have

made some attempt to enter the United States during the two

years he resided in Mexico. Cui offers no explanation for his

actions consistent with his alleged fear of persecution, but his

testimony does suggest a much more likely motive for the

trip: to teach DZ Gong in Mexico. Moreover, when the IJ

asked him to explain his actions in Mexico, Cui was vague

and evasive. The IJ also reasonably found that if Cui really

feared persecution in China, he would have sought asylum in

Mexico, and would not have chosen instead to voluntarily

return to China. See Loho v. Mukasey, 531 F.3d 1016,

1017–18 (9th Cir. 2008) (holding that “[i]t is well established

in this court that an alien’s history of willingly returning to

his or her home country militates against a finding of past

persecution or a well-founded fear of future persecution”).

Cui’s ability to travel to Mexico, his lack of efforts to then
12 CUI V. HOLDER

enter the United States, and his voluntary decision to return

to China go to the heart of his asylum claim because they

undermine his assertions that he feared persecution.

Similarly, Cui’s faulty memory of whether he had to

report to the police after his arrest in 1999 and his vague, if

not inconsistent, statements about whether he had to report to

the police when he returned to China in 2002 are problematic. 

It is reasonable to expect an individual to remember whether

he had been ordered to report to the police on a weekly basis. 

Furthermore, the lack of any corroborative evidence of Cui’s

arrests and beatings or of the arrests and beatings of other DZ

Gong members is especially damaging where, as here, the

“trier of fact either does not believe the applicant or does not

know what to believe.”2 Sidhu, 220 F.3d at 190.

In sum, although Cui’s story, if true, might show

persecution, the inconsistencies noted by the BIA are such

that we are not compelled to accept it. Cui’s inconsistent

statements concerning police surveillance, his failure to

explain why he did not seek to enter the United States during

his two-year-stay in Mexico, and his voluntary return to

China from Mexico, provide an adequate basis for the adverse

credibility finding. See Jibril, 423 F.3d at 1135 (holding that

testimony that is implausible in light of the background

evidence can support an adverse credibility determination). 

Moreover, they go to the heart of Cui’s asylum claim because

2 Neither of Cui’s witnesses, Master Yu and Mr. Shuang Xi, had any

personal knowledge of Cui’s arrests. Neither had seen Cui between the

summer of 1993 and 2003.
CUI V. HOLDER 13

they undermine his contention that he had to “escape” from

China. The petition is DENIED.

3

3 The BIA denied Cui’s requests for asylum, withholding of removal 

and relief under the CAT. Because Cui does not address withholding or

CAT relief in his brief, he waived any objections to the denial of these

requests. See McMillan v. United States, 112 F.3d 1040, 1047 (9th Cir.

1997). In any event, where, as here, the claim for withholding is based on

the same facts as the claim for asylum, the failure to establish eligibility

for asylum results in the failure to demonstrate eligibility for withholding. 

See Halim v. I.N.S., 358 F.3d 1128, 1132 (9th Cir. 2004). While a

petitioner can demonstrate eligibility for CAT relief despite an adverse

credibility finding if “the State Department reports, standing alone,

compel[] the conclusion that [petitioner] is more likely than not to be

tortured” upon return, the State Department reports in this case do not

compel such a conclusion. See Dhital v. Mukasey, 532 F.3d 1044, 1051

(9th Cir. 2008) (quoting Almaghzar, 457 F.3d at 922–23).