* On February 4, 2005, Alberto R. Gonzales became the United States

Attorney General. In accordance with Rule 43(c)(2) of the Federal Rules of Appellate Procedure, Mr. Gonzales is substituted fo r John Ashcroft as the Respondent in this action.

** This order and judgment is not binding precedent, e xcept under the doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### June 28, 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

HONG LIN JIANG,

Petitioner,

v. ALBERTO R. GONZALES, *

Respondent. No. 04-9585 (A77-993-500) (Petition for Review)

ORDER AND JUDGMENT **

Before HARTZ , McKAY , and PORFILIO , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision 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.1 “Restriction on removal was known as ‘withholding o f removal’ prior to

the Illegal Immigration Reform and Immigrant Respon sibility Act of 1996.” Elzour v. Ashcroft , 378 F.3d 1143, 1148 n.5 (10th Cir. 2004). We use the newer term “restriction on removal.” See 8 U.S.C. § 1231(b)(3).

2 The formal name of the Convention Against Torture i s the United Nations Convention Against Torture and Other Cruel, Inhumanor Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85. See Elzour , 378 F.3d at 1150 n.8.

3 “Falun Gong is an international movement, though pr imarily Chinese, that is often referred to as a ‘religion’ (or, by its cr itics, as a ‘cult’), though it is not a religion in the Western sense. . . . The emphasis i s on spiritual self-perfection through prescribed physical exercises; in this resp ect the movement has affinities with traditional Chinese medicine.” Iao v. Gonzales , 400 F.3d 530, 532 (7th Cir. 2005). -2- Hong Lin Jiang, a citizen of the People’s Republic of China, appeals the denial of his petition for asylum, restriction on removal, 1 and relief under the United Nations Convention Against Torture (CAT). 2We take jurisdiction under 8 U.S.C. § 1252(a) and deny the petition for review

. I. Mr. Jiang asserts that his father started practicing Falun Gong 3 in 1996. In July 1999, the Chinese government banned Falun Gongand began persecuting Falun Gong followers. According to Mr. Jiang, around April 2001, the police discovered his father’s involvement with Falun Gongand visited the family’s house. A search uncovered Falun Gong materials in his father’s room, which they seized. Because Mr. Jiang’s father was not home, the police took Mr. Jiang to the station, where they questioned him for about thirtyminutes. The police released-3-

him with a request that his father report to the po lice station. Mr. Jiang returned home. He did not speak with his family, though, be cause while he was at the police station, his father, mother, and brother heard of the police visit and fled. About two weeks later, the police returned, looking for Mr. Jiang’s father. Mr. Jiang testified that they told him that, if his father did not report to the station that day, the rest of the family would be arrested. Mr. Jiang left home and went into hiding until he was smuggled out of China to V ietnam. He arrived in the United States on October 1, 2001, and petitioned fo r asylum, restriction on removal, and relief under the CAT, all of which wer e denied. The Bureau of Immigration Appeals (BIA) affirmed without opinion, and Mr. Jiang appeals.
II. When the BIA summarily affirms the decision of the Immigration Judge (IJ), we review the IJ’s decision as if it were the decision of the BIA. Wiransane v. Ashcroft , 366 F.3d 889, 897 (10th Cir. 2004). To be considered for asylum, Mr. Jiang must prove that he meets the statutory definition of “refugee,” i.e., that he fa ces “persecution or a well-founded fear of persecution on account of race, religion, n ationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A); 8 U.S.C. § 1158(b)(1)(A). “Because [petitioner’s] application failed on refugee status, our review is limited, in breadth, to that threshold determination.” Vatulev4 At the hearing, Mr. Jiang’s testimony regarding pas t persecution concerned

the police visit and questioning regarding his fath er’s Falun Gong materials and the police’s threats to arrest Mr. Jiang if his father did not turn himself in. On appeal, Mr. Jiang claims for the first time that he himself has begun practicing Falun Gong since he arrived in this country. We do not address Mr. Jiang’s new argument because this court does not consider new issues on appeal. See Nguyen v. INS , 991 F.2d 621, 623 n.3 (10th Cir. 1993). -4- v. Ashcroft , 354 F.3d 1207, 1209 (10th Cir. 2003). “Our revie w is further limited, in depth, to evaluating whether the record on the w hole provides substantial support for that determination or, rather, is so de cisively to the contrary that a reasonable factfinder would have concluded petitioner is a refugee.” Id. In immigration proceedings, it is the province of the BIA and the IJ to make factual findings, including credibility determinations. Co nsequently, we do not disturb an IJ’s factual findings, so long as “they are subs tantially reasonable and supported by specific, cogent reasons.” Sviridov v. Ashcroft , 358 F.3d 722, 729 (10th Cir. 2004). Mr. Jiang asserts past persecution and the likeliho od of future persecution on account of political opinion, due to his father’s practice of Falun Gong. 4“On its face, this claim is cognizable under the asylum statute.” Vatulev , 354 F.3d at 1209. “Thus, our disposition turns on whether peti tioner presented evidence sufficient to compel a reasonable factfinder to acc ept [his] version and legal characterization of the events prompting [his] application for asylum.” Id.-5-

Mr. Jiang had little evidence other than his own te stimony, and the IJ stated that “this case basically comes down to [the] credi bility of this individual.” Admin. R. at 34. The IJ discounted Mr. Jiang’s cre dibility because it “was not sufficiently detailed, consistent, or believable to provide a plausible and coherent account of the basis for his fears.” Id. at 35. Particularly, the IJ was troubled by Mr. Jiang’s account of his interactions with police , finding his description of his family’s actions “not reasonable” and without coherent explanation. Id. at 36. The IJ also was troubled by Mr. Jiang’s testimony about his documentation to enter the United States and his explanation why he threw his passport and tickets away before immigration officials contacted him, hi s inability to recall details about his travels to the United States, and by spec ific inconsistencies and implausibilities in parts of his testimony. Furthe r, the IJ noted that Mr. Jiang did not present items within his control that would hav e enhanced his credibility. “An IJ’s adverse credibility determination may appr opriately be based upon such factors as inconsistencies in the witness’ tes timony, lack of sufficient detail, or implausibility.” Elzour v. Ashcroft , 378 F.3d 1143, 1152 (10th Cir. 2004). Our review of the record indicates that the IJ identifi ed the required specific, cogent factors, that the factors he cited were appropriate in evaluating Mr. Jiang’s credibility, and that his determination is substant ially reasonable and is supported-6-

by the record as a whole. On this record, a reason able factfinder is not compelled to conclude that Mr. Jiang has proven refugee statu s. Because Mr. Jiang falls short of meeting the standard for asylum, he also cannot establish his entitlement to restriction on removal, which involves even more stringent standards. See Estrada-Escobar v. Ashcroft , 376 F.3d 1042, 1048 (10th Cir. 2004). Further, the CAT requires a show ing that it would be more likely than not that Mr. Jiang would be tortured if he were to return to China. See Sviridov , 358 F.3d at 729. We conclude that there is subst antial evidence supporting the IJ’s determination that Mr. Jiang is not entitled to relief under the
CAT. The petition for review is DENIED. Entered for the Court

John C. Porfilio Circuit Judge