NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 16-1526

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HAI WEN CHEN, 

A/K/A Hi Wen Chen,

A/K/A Hi Wen Zhen,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,

Respondent

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On Petition for Review of a Decision

and Order of the Board of Immigration Appeals

(BIA No. A089-708-310)

Immigration Judge: Annie S. Garcy

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Submitted under Third Circuit LAR 34.1(a)

October 4, 2016

BEFORE: SHWARTZ, GREENBERG, and ROTH, Circuit Judges

(Filed: November 21, 2016)

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OPINION*

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GREENBERG, Circuit Judge.

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*This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7

does not constitute binding precedent. 
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This matter comes on before this Court on Hai Wen Chen’s petition for review of 

a decision and order of the Board of Immigration Appeals (“Board”) dated September 17, 

2015, dismissing Chen’s appeal from an oral decision and written order of an 

immigration judge (“IJ”) denying his applications for asylum, withholding of removal, 

and relief under the Convention Against Torture and ordering Chen’s removal from the 

United States. Chen explains in his brief that he entered the United States on December 

6, 2009, “without being admitted or parole[d].” Petitioner’s br. at 3. He further explains 

that he came from China and left that country “because he detested the despotic regime of 

the Chinese government.” Id. at 4. 

Chen does not contend, however, that he is entitled to relief because of the nature 

of the Chinese government. To the contrary, he explains in his brief that:

During his stay in the United States, [he] received some Falun Gong flyers 

in [the] street. He began to have interest in Falun Gong and decided to 

learn to practice Falun Gong. [He] knew the Chinese government is 

cracking down [on] Falun Gong, since he is currently practicing Falun 

Gong, he is afraid that he would be persecuted if he were sent back to 

China.

Id. at 5-6 (citation omitted). Thus, he bases his claims not on what had happened to him 

in China but his alleged fear that Chinese government will persecute him if he returns to 

that country. As the Board explained, the IJ “found that the [petitioner] was not credible, 

and that he has not met his burden to establish that he is prima facie eligible for the relief 

he seeks.” A.R. at 3. The Board dismissed the appeal from the IJ’s decision because it 

held that:

The Immigration Judge offered specific and cogent reasons for her finding 

that [petitioner] was not credible, including the omissions and 
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inconsistencies within his account, his vague testimony regarding his 

practice of Falun Gong, and the lack of evidence for his claim such as the 

absence of information about the person who[ ] took posed photographs of 

him practicing Falun Gong, his inability to identify any person outside his 

immediate family who is aware of his Falun Gong practice, and his 

witness’s lack of knowledge for his claim that he attended Falun Gong

activities in Washington, D.C. See I.J. at 9-15. She considered the totality 

of the circumstances, including the [petitioner’s] age, mental condition, and 

organizational skills, in rendering her adverse credibility determination. Id.

at 6-15; Thu v. Att’y Gen., 510 F.3d 405, 416 (3d Cir. 2007) (all the facts 

available in the record should be considered in a credibility determination). 

We note that an adverse credibility determination under the REAL ID Act 

may be based on testimony regardless of whether it goes to the heart of an 

applicant’s claim. See section 208(b)(1)(B)(iii) of the Act; Lin v. Att’y 

Gen., 543 F.3d 114, 119 n.5 (3d Cir. 2008). We conclude that the 

Immigration Judge’s adverse credibility finding is not clearly erroneous. 

See I.J. at 10-15; section 208(b)(1)(B)(iii) of the Act; 8 C.F.R. § 

1003.1(d)(3)(i).

A.R. at 3-4. Petitioner then filed a timely petition for review with this Court.

The Board had jurisdiction under 8 C.F.R. § 1003.1(b)(3) and § 1240.15. We have 

jurisdiction under 8 U.S.C. § 1252(a)(1) and (b). Venue properly was laid in this Court 

because the proceedings before the IJ were completed in Newark, New Jersey, within this 

circuit. In considering the petition in this case, we review the record on a substantial 

evidence standard. See INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 815 

(1992); Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir. 2003) (en banc). Thus, we determine 

if substantial evidence supports the decision under review. Though Chen’s petition seeks 

review of a decision of the Board, inasmuch as the Board affirmed the IJ’s adverse 

credibility finding with respect to petitioner’s testimony on the basis of the IJ’s analysis,

we also are reviewing her decision. See Sandie v. Att’y Gen., 562 F.3d 246, 250 (3d Cir. 

2009). Finally, with respect to jurisdiction we observe that the respondent contends that 
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we lack “jurisdiction over Petitioner’s claim that the [IJ] erred in finding his testimony 

not credible because he failed to exhaust this issue before the Board.” Respondent’s br. 

at 15.

After our review of this matter we have concluded that even setting aside 

respondent’s jurisdictional argument and reviewing the entire record and considering all 

the issues petitioner raises, his petition for review is devoid of merit for the reasons the 

Board and the IJ set forth. In the circumstances, we cannot reject the IJ’s and the Board’s 

findings as we cannot say that no reasonable factfinder could have come to their 

conclusions. See Xie v. Ashcroft, 359 F.3d 239, 243 (3d Cir. 2004).

The petition for review will be denied. Costs taxed against the petitioner.