USCA11 Case: 21-14497 Document: 24-1 Date Filed: 01/19/2023 Page: 1 of 10
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-14497
Non-Argument Calendar
____________________
LIWEI ZHOU,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A205-778-915
____________________
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2 Opinion of the Court 21-14497
Before ROSENBAUM, GRANT, and TJOFLAT, Circuit Judges.
PER CURIAM:
Liwei Zhou seeks review of the Board of Immigration Ap-
peals’s (“BIA”) final order affirming the Immigration Judge’s (“IJ”)
denial of his application for asylum based on an adverse credibility
finding. He argues that both the BIA and IJ failed to apply the “to-
tality of the circumstances” test in assessing the credibility of his
testimony, and that substantial evidence did not support the ad-
verse credibility finding.
I.
Zhou, a native and citizen of China, was admitted to the
United States on a B-2 visa in October 2012. In February 2017, the
Department of Homeland Security (“DHS”) served Zhou with a
Notice to Appear (“NTA”), charging him as removable under INA
§ 237(a)(1)(B),
8 U.S.C. § 1227(a)(1)(B), for remaining in the United
States beyond the expiration of his visa, which occurred in April
2013. Zhou conceded the allegations in the NTA, including his re-
movability, and then filed an application for asylum, withholding
of removal, and relief under the Convention Against Torture
(“CAT”) based on persecution related to his opposition to China’s
family planning policies. 1
1 Zhou does not appeal the denial of CAT relief, so we do not further address
this aspect of his application for asylum. Issues not raised in a party’s initial
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21-14497 Opinion of the Court 3
In his written statement, Zhou stated that his wife became
pregnant with their second child in August 1992. Four months into
her pregnancy, Chinese officials notified her that she would be re-
quired to have an abortion, so they escaped to keep the child.
While he and his wife were in hiding, officials tore the roof off their
house and tortured and interrogated Zhou’s mother to determine
the couple’s whereabouts. He and his wife returned to their home
following the birth of their second child, and officials informed
Zhou’s wife that she would be forced to undergo a sterilization pro-
cedure, but Zhou insisted that she refuse. Officials subsequently
visited Zhou’s home again, and when he objected to his wife being
taken to the hospital to undergo the sterilization procedure, police
officers pushed him to the ground and beat him with their fists.
After forcing his wife to have a sterilization procedure, offi-
cials imposed a fine on Zhou for having a second child. Because he
could not pay it, they detained him at the police station and beat
him with belts and batons. Although his “wife’s health was very
poor[,] . . . she tried to visit . . . relatives and friends to borrow
money,” and she collected enough money to pay the fine after
three days. Upon Zhou’s release, officials ordered him to report to
the police station every week, which prevented him from going to
another city to earn money, resulting in him “totally los[ing his]
freedom.”
brief are deemed abandoned. Sepulveda v. U.S. Att’y Gen.,
401 F.3d 1226,
1228 n.2 (11th Cir. 2005) (per curiam).
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4 Opinion of the Court 21-14497
After a merits hearing, the IJ issued an oral decision denying
Zhou’s application and ordering that he be removed to China. It
excluded various exhibits that Zhou had attached in support of his
application for untimeliness and prejudice to the government, in-
cluding the marriage certificate and household registration form.
At a scheduling hearing held on August 23, 2017, the IJ noted some
discrepancies between what Zhou’s counsel and the IJ had in their
respective folders. The IJ reminded counsel not to “assume that
[the IJ has] everything . . . because [the IJ] may be lacking some-
thing and [counsel will] be referring to it during the hearing and
[the IJ will] have no idea what [counsel is] talking about.”
Counsel had apparently failed to heed the IJ’s warning be-
cause at the merits hearing on November 8, 2018—over a year
later—counsel thought the IJ and the government had certain doc-
uments that they either did not have, or that were unauthenticated.
Zhou’s counsel also attempted to introduce other documents at
the hearing. When asked about the untimeliness, counsel stated
that he had filed a motion for a continuance due to a scheduled
vacation. He assumed it would have been granted, thus providing
him with more time, but it was not.
Having excluded a number of exhibits for untimeliness and
prejudice to the government, the IJ noted in the oral decision that,
“after considering the totality of the circumstances and all relevant
factors,” it had found Zhou to not be credible for three reasons.
First, it found that Zhou’s application listed his marriage date as
December 26, 1990, but he testified that the ceremony was held on
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21-14497 Opinion of the Court 5
December 24, 1990, and although he did not know the date of his
marriage registration, he thought that it may have been on Decem-
ber 6, 1990. Second, the IJ further found that Zhou had testified
inconsistently regarding why he, rather than his wife, had come to
the United States because, although he first stated that she did not
come because she experienced health problems related to the ster-
ilization procedure, he later claimed that she did not come because
she was a woman who was not cultured, and did not suffer from a
loss of freedom in China. Third, the IJ found Zhou not credible
when he claimed that local family planning officials were still ac-
tively looking for him due to his failure to check in regularly as a
condition of his release. Though he testified at the merits hearing
that officials were “still seeking his whereabouts as of November of
2012 and up until as recently as 10 days ago,” neither Zhou’s writ-
ten statement nor his wife’s contained such information.
Zhou appealed to the BIA. The BIA dismissed Zhou’s ap-
peal, only reaching the credibility issue in its separate opinion.
II.
A.
We review only the decision of the BIA, except to the extent
that the BIA expressly adopts or explicitly agrees with the IJ’s opin-
ion. Ayala v. U.S. Att’y Gen.,
605 F.3d 941, 947–48 (11th Cir. 2010).
We review the IJ’s opinion to the extent that the BIA has found that
the IJ’s reasons were supported by the record, and the BIA’s deci-
sion with regard to those matters on which it rendered its own
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6 Opinion of the Court 21-14497
opinion and reasoning. Seck v. U.S. Att’y Gen.,
663 F.3d 1356, 1364
(11th Cir. 2011). “We do not consider issues that were not reached
by the BIA.” Gonzalez v. U.S. Att’y Gen.,
820 F.3d 399, 403 (11th
Cir. 2016) (per curiam).
We “may review a final order of removal only if . . . the alien
has exhausted all administrative remedies available to the alien as
of right.” INA § 242(d)(1),
8 U.S.C. § 1252(d)(1). The exhaustion
requirement is jurisdictional and precludes review of a claim that
was not presented to the BIA. Amaya-Artunduaga v. U.S. Att’y
Gen.,
463 F.3d 1247, 1250 (11th Cir. 2006) (per curiam). The peti-
tioner must have argued “the core issue now on appeal” before the
BIA, and although the exhaustion requirement does not mandate
well-developed arguments and precise legal terminology, it re-
quires the petitioner to “provide information sufficient to enable
the BIA to review and correct any errors below.” Indrawati v. U.S.
Att’y Gen.,
779 F.3d 1284, 1297 (11th Cir. 2015) (quotation marks
omitted).
As an initial matter, therefore, by failing to address the issue
in his initial brief, Zhou has abandoned any argument related to
the denial of his claim for withholding of removal. We are pre-
cluded from reviewing whether the IJ failed to consider or improp-
erly excluded corroborating evidence as well, because Zhou did
not present the issue to the BIA. We also do not consider the mer-
its of his asylum claim, as the BIA did not reach that issue.
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21-14497 Opinion of the Court 7
B.
We review de novo all legal issues. Zheng v. U.S. Att’y
Gen.,
451 F.3d 1287, 1289 (11th Cir. 2006) (per curiam). Credibility
determinations are reviewed under the substantial evidence test.
Chen v. U.S. Att’y Gen.,
463 F.3d 1228, 1230–31 (11th Cir. 2006)
(per curiam). “The trier of fact must determine credibility, and this
[C]ourt may not substitute its judgment for that of the BIA with
respect to credibility findings.” D-Muhumed v. U.S. Att’y Gen.,
388
F.3d 814, 818 (11th Cir. 2004); see also INA § 242(b)(4)(D),
8 U.S.C.
§ 1252(b)(4)(D). Under the highly deferential substantial evidence
test, we must affirm the BIA’s decision if it is “supported by reason-
able, substantial, and probative evidence on the record considered
as a whole.” Adefemi v. Ashcroft,
386 F.3d 1022, 1026–27 (11th Cir.
2004) (en banc) (quotation marks omitted). We view the evidence
in the light most favorable to the agency’s decision and draw all
reasonable inferences in favor of that decision.
Id. at 1027. The
mere fact that the record may support a contrary conclusion is not
enough to justify a reversal of the agency’s findings.
Id. Instead,
we will reverse the IJ’s credibility findings “only if the evidence
compels a reasonable fact finder to find otherwise.” Chen,
463 F.3d
at 1230–31 (quotation marks omitted).
“The asylum applicant must establish eligibility for asylum
by offering credible, direct, and specific evidence in the record.”
Forgue v. U.S. Att’y Gen.,
401 F.3d 1282, 1287 (11th Cir. 2005) (quo-
tation marks omitted). “In order to qualify for asylum, the appli-
cant must establish: (1) past persecution on account of a statutorily
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8 Opinion of the Court 21-14497
protected ground or (2) a well-founded fear of future persecution
on account of a protected ground.” Li Shan Chen v. U.S. Att’y
Gen.,
672 F.3d 961, 964 (11th Cir. 2011) (quotation marks omitted).
If found to be credible, an applicant’s testimony is sufficient on its
own to establish these factors. D-Muhumed,
388 F.3d at 818–19.
Conversely, if the applicant is found not credible and has not pro-
vided sufficient corroborating evidence, an adverse credibility de-
termination alone may be sufficient to support the denial of such a
claim. Forgue,
401 F.3d at 1287. However, even if an individual is
found to be not credible, the IJ has a duty to consider other evi-
dence produced by the asylum applicant.
Id.
A credibility determination may be based on the totality of
the circumstances, including the following: (1) the demeanor, can-
dor, and responsiveness of the applicant; (2) the plausibility of the
applicant’s account; (3) the consistency between the applicant’s
written and oral statements; (4) the internal consistency of each
statement; (5) the consistency of the applicant’s statements with
other record evidence, including country reports; and (6) any inac-
curacies or falsehoods in such statements, “without regard to
whether an inconsistency, inaccuracy, or falsehood goes to the
heart of the applicant’s claim, or any other relevant factor.” INA
§ 208(b)(1)(B)(iii),
8 U.S.C. § 1158(b)(1)(B)(iii). When the IJ makes
an adverse credibility finding, “the IJ must offer specific, cogent rea-
sons for the finding.” Chen,
463 F.3d at 1231. The burden then
shifts to the applicant to demonstrate that the decision was not sup-
ported by such specific, cogent reasons or by substantial evidence.
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21-14497 Opinion of the Court 9
Id. However, a tenable explanation for any inconsistencies in the
applicant’s testimony may still not compel reversal of the IJ’s ad-
verse credibility determination.
Id. at 1233. We have held that
substantial evidence supported an adverse credibility determina-
tion where the applicant’s testimony “included at least one internal
inconsistency” and “one omission” and the applicant did not pro-
vide corroborating evidence that would have rebutted these incon-
sistencies and omissions. See Xia v. U.S. Att’y Gen.,
608 F.3d 1233,
1240 (11th Cir. 2010).
Here, the IJ and BIA did not fail to apply the totality of the
circumstances test. The IJ and BIA found Zhou’s testimony not
credible based on two inconsistencies and one omission: the mar-
riage date, the reason for Zhou rather than his wife coming to the
United States, and whether local family planning authorities in
China were still looking for him as of the date of the merits hearing.
While the marriage date and possibly the reason for immigrating
do not go to the heart of Zhou’s asylum claim, and the activities of
local Chinese authorities do not go to the heart of Zhou’s past per-
secution argument, the INA specifically states that whether or not
an inconsistency or omission goes to the heart of an asylum appli-
cant’s claim is irrelevant to an IJ’s credibility determination.
Further, there are alternative explanations to the latter two
inconsistencies and omissions. For instance, there may have been
a number of reasons why Zhou rather than his wife immigrated to
the United States, rendering the multiple reasons provided at the
merits hearing true, rather than contradictory. Additionally, it is
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10 Opinion of the Court 21-14497
possible that local Chinese authorities have only begun looking for
Zhou again after he and his wife had provided their written state-
ments. These alternative explanations do not help Zhou, however,
under our highly deferential substantial evidence test. Our review
must take the facts in the light most favorable to the agency’s deci-
sion. Even though an alternative explanation may be plausible,
since the alternative explanation is not compelled, we cannot re-
verse the IJ’s determination.
Last, because few of the exhibits were properly admitted,
the IJ’s credibility decision largely considered Zhou’s testimony
and his and his wife’s written statements in a vacuum without any
potentially corroborating evidence. In such a situation, the IJ is in
the best position to evaluate an asylum applicant’s testimony, de-
meanor, and body language to determine the applicant’s credibil-
ity. Accordingly, we deny Zhou’s petition for review.
PETITION DENIED.
