                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                             July 28, 2005
                              FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    QINGFENG NI,

                Petitioner,
                                                         No. 04-9589
    v.                                                  (A96 056 531)
                                                     (Petition for Review)
    ALBERTO R. GONZALES,        *



                Respondent.




                              ORDER AND JUDGMENT         **




Before SEYMOUR, KELLY, and MURPHY                Circuit Judges.


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

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.


*
      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 for John Ashcroft as the
Respondent in this action.
**
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Petitioner seeks review of a decision of the Board of Immigration Appeals

(BIA) dismissing his appeal from an immigration judge’s denial of his application

for asylum and restriction on removal.   1
                                             We exercise jurisdiction pursuant to

8 U.S.C. §1252(a) and we deny the petition for review.

      Petitioner, QingFeng Ni, is a citizen of the People’s Republic of China who

entered the United States under false pretenses on September 29, 2001. He

subsequently applied for asylum and restriction on removal citing past persecution

and a fear of future persecution on account of his practice of Falun Gong,

practitioners of which have been routinely persecuted by the Chinese government.

Petitioner contends that while practicing Falun Gong in China, he was arrested,

sent to a detention center, and interrogated numerous times by the Chinese

authorities. He claims that he was starved and beaten repeatedly during his

detention and that he required hospitalization upon his release. The asylum

officer who reviewed petitioner’s application did not believe his story, in part

because petitioner was unable to clarify the timeline of events concerning his

arrest, interrogations, and hospital stay. The asylum officer found petitioner

ineligible for asylum and referred his application to an immigration judge (IJ).


1
        Prior to the Illegal Immigration Reform and Immigrant Responsibility Act
of 1996, restriction on removal was called “withholding of removal.”     Elzour v.
Ashcroft , 378 F.3d 1143, 1148 n.5 (10th Cir. 2004). We refer to the new statutory
“restriction on removal” terminology in this order and judgment.     See 8 U.S.C.
§ 1231(b)(3).

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      The IJ held a hearing on May 13, 2003. Petitioner was the sole witness. At

the hearing, petitioner’s testimony regarding the dates that he was interrogated

differed from the dates that he had initially told the asylum officer. When asked

to explain the discrepancy, petitioner testified that at the time of his interview

with the asylum officer he was suffering from a headache and was confused

because he had not eaten all day. Although his appointment was at 8:30 a.m., the

asylum officer did not see him until 2:00 p.m., and the interview lasted for over

an hour. He testified that because he did not speak English, he could not ask

anyone where he could go for lunch. He also testified that his interpreter and

attorney went to lunch together that day, leaving petitioner to his own devices to

find food.

      In his oral decision, the IJ rejected petitioner’s story, reasoning that a

person of average intelligence, who was starving on the day of his asylum

interview, would have asked his attorney or the interpreter where he could get

lunch or would have wandered around the federal building or the neighborhood in

search of food. The IJ also reasoned that if such a person had a headache or was

confused, he would have asked to reschedule his case. The IJ found that the

alleged interrogations of petitioner by the Chinese authorities went to the heart of

his asylum application, and that petitioner simply was not a credible witness on

the subject. Petitioner’s credibility was also called into question because of his


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superficial knowledge of Falun Gong and his failure to produce local witnesses or

affidavits from people in the United States who belong to the group.

Accordingly, the IJ concluded that petitioner did not meet his burden to show he

was a refugee and denied the application. The BIA summarily affirmed the IJ’s

decision without opinion.

       When the BIA summarily affirms an order of an IJ, we review the IJ’s order

as the final agency determination.    Elzour v. Ashcroft , 378 F.3d 1143, 1150 (10th

Cir. 2004). We do not weigh the evidence or evaluate the credibility of witnesses.

Yuk v. Ashcroft , 355 F.3d 1222, 1233 (10th Cir. 2004). An IJ must give specific,

cogent reasons for his credibility determinations.    Sviridov v. Ashcroft , 358 F.3d

722, 727 (10th Cir. 2004). However, a finding that a witness is not credible is a

finding of fact, see Elzour, 378 F.3d at 1150, and the “BIA’s findings of fact are

conclusive unless the record demonstrates that any reasonable adjudicator would

be compelled to conclude to the contrary.”     Tsevegmid v. Ashcroft , 336 F.3d 1231,

1235 (10th Cir. 2003) (quotation omitted). Accordingly, we will not question the

BIA’s credibility determinations as long as they are substantially reasonable.

Woldemeskel v. INS, 257 F.3d 1185, 1192 (10th Cir. 2001).




                                             -4-
       Asylum

       An asylum application involves a two-step process. First, the applicant has

the burden to prove his eligibility for asylum by establishing that he is a refugee

as defined in 8 U.S.C. § 1101(a)(42).     See Yuk , 355 F.3d at 1232. Second, if an

applicant establishes refugee status, the Attorney General exercises discretionary

judgment in either granting or denying asylum.       Id. at 1233. An applicant for

asylum can establish refugee status in the following ways: (1) he can show that he

has a well-founded fear of future persecution,     id. at 1232; (2) he can demonstrate

that he has suffered past persecution, which gives rise to a rebuttable presumption

that he has a well-founded fear of future persecution,    see id. ; or (3) he can

establish past persecution “so severe that it demonstrates ‘compelling reasons for

being unwilling to return,’” which is known as humanitarian asylum,        id. at 1233

(quoting from 8 C.F.R. § 208.13(b)(1)(ii)(2000) (current version at 8 C.F.R.

§ 208.13(b)(1)(iii)(A))).

       In this case, the IJ determined that petitioner did not establish refugee

status. We review this determination under a substantial evidence standard.          See

Yuk , 355 F.3d at 1233.   We must uphold the IJ’s determination that petitioner is

not eligible for asylum if the record considered as a whole contains reasonable,

substantial, and probative evidence to support that determination.      INS v. Elias-

Zacarias , 502 U.S. 478, 481 (1992). Reversal is appropriate only if the evidence


                                            -5-
presented by the petitioner was such that a reasonable factfinder would have to

conclude that the requisite fear of persecution existed.         Id.

       Here, the IJ determined as a matter of fact that petitioner was not a credible

witness and he provided specific, cogent reasons for his credibility assessment.

Sviridov , 358 F.3d at 727. In his petition for review, petitioner disagrees with the

IJ’s credibility determination and maintains that his testimony was truthful.

Because we cannot weigh the evidence or evaluate the credibility of witnesses,

Yuk , 355 F.3d at 1233, we must conclude that the IJ’s factual findings with

respect to petitioner’s credibility are conclusive. Our review of the record does

not compel us to hold otherwise.     Tsevegmid , 336 F.3d at 1235. Petitioner bore

the burden of proof in the removal proceedings and he failed to establish that he

is a refugee. He is, therefore, ineligible for asylum.

       Restriction on Removal

       An applicant is entitled to restriction on removal “if he or she can show a

‘clear probability of persecution,’ which courts have acknowledged is a higher

standard than that for asylum.”    Yuk , 355 F.3d at 1236. Because petitioner failed

to meet the lower standard of showing entitlement to asylum, the IJ correctly

denied his application for restriction on removal.         Id.




                                             -6-
      Conclusion

      Because we accept the agency’s findings regarding petitioner’s credibility

as conclusive, 8 U.S.C. §1252(b)(4)(B), we DENY the petition for review.

                                                     Entered for the Court


                                                     Paul J. Kelly, Jr.
                                                     Circuit Judge




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