Meng Gen Lin v. U.S. Attorney General , 335 F. App'x 1 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-12822 ELEVENTH CIRCUIT
APRIL 16, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
Agency No. A72-373-515
MENG GEN LIN,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(April 16, 2009)
Before BIRCH, HULL and ANDERSON, Circuit Judges.
PER CURIAM:
Meng Gen Lin, through counsel, seeks review of the Immigration Judge
(“IJ”) and Board of Immigration Appeal’s (“BIA”) decision pretermitting his 2001
application for asylum (“2001 Application”) as untimely, and denying withholding
of removal under the Immigration and Naturalization Act (“INA”) and relief under
the United Nations Convention Against Torture and Other Cruel, Inhuman and
Degrading Treatment or Punishment (“CAT relief”).
In its oral decision, the IJ concluded that Lin had failed to present sufficient
credible evidence to support his claims that he would be persecuted for violating
China’s family-planning policies. Thereafter, the BIA affirmed and adopted the
IJ’s decision, finding, inter alia, that the IJ’s adverse credibility determination was
not clearly erroneous. On appeal, Lin contends that he was eligible for
withholding of removal and CAT relief based on his claim that he would be
persecuted for violating China’s family-planning policies. In those arguments,
however, Lin fails to attack the IJ’s determination that he failed to provide credible
evidence to support his claims.
As an initial matter, Lin originally sought asylum relief, but in his brief
before us, Lin has not argued this issue and has therefore abandoned it. Mendoza
v. U.S. Att’y Gen., 327 F.3d 1283, 1286 n.3 (11th Cir. 2003); Al Najjar v.
Ashcroft, 257 F.3d 1262, 1283 n.12 (11th Cir. 2001) (stating that issues not argued
in the initial brief on appeal are deemed abandoned). In addition, Lin did not
properly raise his claim for CAT relief before the BIA, and we dismiss this portion
of his petition for review. See Alim v. Gonzales, 446 F.3d 1239, 1253 (11th Cir.
2006) (holding that we lacked jurisdiction over a claim when the petitioner did not
2
discuss the merits of the claim, resulting in failure to exhaust available
administrative remedies).
When the BIA issues a decision, we review only that decision, except to the
extent that the BIA expressly adopts the IJ’s decision. Nreka v. U.S. Att’y Gen.,
408 F.3d 1361, 1368 (11th Cir. 2005) (citing Al Najjar, 257 F.3d at 1284). In this
case, the BIA both expressly adopted the IJ’s decision and made its own
observations, so we review both the BIA’s and the IJ’s decisions.
To the extent the BIA’s decision was based on a legal determination, our
review is de novo. D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 817 (11th Cir.
2004). However, factual determinations are reviewed under the
substantial-evidence test, and we “must affirm the . . . decision if it is supported by
reasonable, substantial, and probative evidence on the record considered as a
whole.” Al Najjar, 257 F.3d at 1283-84 (quotation omitted). Thus, a finding of
fact will be reversed “only when the record compels a reversal; the mere fact that
the record may support a contrary conclusion is not enough to justify a
reversal . . . .” Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004); see
also INA § 242(b)(4)(B), 8 U.S.C. § 1252(b)(4)(B) (“[T]he administrative findings
of fact are conclusive unless any reasonable adjudicator would be compelled to
conclude to the contrary . . . .”). In addition we “view the record evidence in the
light most favorable to the agency’s decision and draw all reasonable inferences in
3
favor of that decision.” Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1236 (11th Cir.
2006) (quotation omitted).
We may not substitute our judgment for that of the IJ and BIA with respect
to credibility findings. D-Muhumed, 388 F.3d at 818. “Once an adverse
credibility finding is made, the burden is on the applicant alien to show that the . . .
credibility decision was not supported by specific, cogent reasons or was not based
on substantial evidence.” Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1287 (11th
Cir. 2005) (quotations omitted).
The IJ must make an explicit, or “clean,” determination that an applicant’s
testimony is not credible, which will be viewed as conclusive unless a reasonable
factfinder would be compelled to conclude to the contrary. Yang v. U.S. Att’y
Gen., 418 F.3d 1198, 1201 (11th Cir. 2005). A comment on the sufficiency of the
evidence concerning a certain point, without more, may not constitute a sufficient
credibility finding. See id. at 1201 (holding that an IJ’s statement that an
applicant’s testimony was “extremely inconsistent and [made] absolutely no sense
whatsoever” was not a clean credibility finding but a comment on the sufficiency
of the evidence). Furthermore, if the IJ does not make a specific finding as to
credibility, the petitioner’s testimony is presumed to be credible. See Niftaliev v.
U.S. Att’y Gen., 504 F.3d 1211, 1216 (11th Cir. 2007) (finding that the IJ stated
the petitioner was not incredible and testimony was consistent with the
application).
4
Indications of reliable testimony include consistency on direct examination,
consistency with the written application, and the absence of embellishments. See
In re B–, 21 I & N Dec. 66, 70 (BIA 1995). An adverse credibility determination
alone may be the basis for denying an asylum application if the applicant produces
no evidence other than his testimony. Forgue, 401 F.3d at 1287. If the applicant
produces evidence then it must also be considered by the IJ, and the IJ may not rely
solely on an adverse credibility determination in denying relief in those instances.
Id.An IJ or the BIA may require a petitioner to present corroborating evidence.
Under the REAL ID Act of 2005, “[n]o court shall reverse a determination made
by a trier of fact with respect to the availability of corroborating
evidence . . . unless the court finds . . . that a reasonable trier of fact is compelled to
conclude that such corroborating evidence is unavailable.” Pub. L. No. 109-13,
Div. B, § 101(e), 119 Stat. 231, 305 (2005). This provision is retroactively
applicable to all cases in which the final administrative order was issued before,
on, or after May 11, 2005, the effective date of the REAL ID Act of 2005, and
thus, it applies to Lin. Id. at § 101(h)(3), 119 Stat. at 305.
The IJ listed numerous inconsistencies among Lin’s testimony, his
2001 Application, and his 1994 Application. The IJ also determined that Lin had
failed to present credible evidence of the number of children he had and whether or
not his wife was sterilized. The specific inconsistencies cited by the IJ and BIA
5
are supported by the record, given that Lin did not mention the existence of his
second daughter until after he initially filed the 2001 Application, as well as the
fact that Lin’s 1994 Application put him in the United States at the time of the
child’s alleged date of conception and birth.
Because substantial evidence supported the BIA’s and IJ’s determinations
that Lin failed to provide credible evidence with regard to his withholding of
removal claim, we deny this portion of the petition for review.
Upon review of the record on appeal, and upon consideration of the parties’
briefs, we find no reversible error.
PETITION DISMISSED, IN PART, AND DENIED, IN PART.
6