Case: 13-60831 Document: 00512766809 Page: 1 Date Filed: 09/12/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-60831
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
September 12, 2014
QUI CHEN, also known as Qiu Chen,
Lyle W. Cayce
Clerk
Petitioner
v.
ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A200 904 111
Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Qui Chen, a native and citizen of China, petitions for review of a decision
by the Board of Immigration Appeals (“BIA”) upholding a decision of the
immigration judge (“IJ”) finding him removable and denying his requested
forms of relief. The IJ found that Chen was not credible and that he had
therefore failed to establish his claim for asylum and statutory withholding of
removal. The IJ determined that, even if Chen had been completely credible,
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 13-60831
he had not established an entitlement to relief. The IJ also concluded that
Chen was not entitled to relief under the Convention Against Torture (“CAT”).
The BIA agreed with the IJ’s credibility determination, and it dismissed Chen’s
appeal.
Chen challenges the IJ’s adverse credibility determination. He also
attacks the IJ’s determination that he was not entitled to relief even if his
testimony were deemed credible. Because the BIA did not adopt the latter
rationale for denying Chen’s application, we need not consider his arguments
in that regard. See Yang v. Holder, 664 F.3d 580, 584 n.3 (5th Cir. 2011).
On a petition for review, we consider only the BIA’s decision, “unless the
IJ’s decision has some impact on the BIA’s decision.” Wang v. Holder, 569 F.3d
531, 536 (5th Cir. 2009). Here, because the BIA upheld the IJ’s decision based
on the latter’s credibility determination, which it determined to be not clearly
erroneous and dispositive, we may review the decisions of both the BIA and
the IJ. See id.; Efe v. Ashcroft, 293 F.3d 899, 903 (5th Cir. 2002).
An immigration court’s findings of fact are reviewed for substantial
evidence. Wang, 569 F.3d at 536. We may not reverse an immigration court’s
factual findings unless “the evidence was so compelling that no reasonable
factfinder could conclude against it.” Id. at 537. Among the findings of fact
that we review for substantial evidence is the conclusion that an alien is not
eligible for asylum, withholding of removal, or relief under the CAT. Zhang v.
Gonzales, 432 F.3d 339, 344 (5th Cir. 2005). It is the factfinder’s duty to make
determinations based on the credibility of witnesses, and we cannot substitute
our judgment for that of the BIA or IJ with respect to factual findings based on
credibility determinations. Chun v. I.N.S., 40 F.3d 76, 78 (5th Cir. 1994) (per
curiam). However, an adverse credibility determination still must be
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supported “by specific and cogent reasons derived from the record.” Zhang,
432 F.3d at 344.
Chen’s contention that his lack of knowledge of the legal age for marriage
is not central to his claim is unavailing, as the agency is permitted to make an
adverse credibility determination “without regard to whether an inconsistency,
inaccuracy, or falsehood goes to the heart of the applicant’s claim.” 8 U.S.C.
§ 1158(b)(1)(B)(iii). Our review of the record shows that the BIA’s
determination that Chen gave conflicting testimony regarding his wedding
date is supported by substantial evidence. Chen’s testimony that he sustained
a wrist fracture when beaten at a police station is in conflict with his statement
in a credible fear interview that his bone was not broken. Further, to the
extent that Chen testified that his child was seven to eight weeks old in certain
photographs, the IJ’s implicit determination that the child was older, and that
Chen’s testimony was therefore not credible, is supported by substantial
evidence.
Finally, Chen argues that the IJ erred in determining that he was not
credible with regard to his testimony about escaping from the police station.
Even if we accept Chen’s argument on this specific point, the totality of the
circumstances does not compel a finding that Chen was credible, and
accordingly we will not disturb the agency’s overall adverse credibility
determination. See Wang, 569 F.3d at 537-39.
Given the adverse credibility determination, Chen did not demonstrate
that he was entitled to asylum or statutory withholding of removal. See Zhang,
432 F.3d at 345. Chen has not challenged the denial of his request for relief
under the CAT. He has therefore abandoned that claim. See Thuri v. Ashcroft,
380 F.3d 788, 793 (5th Cir. 2004).
In view of the foregoing, Chen’s petition for review is DENIED.
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