Wu Liu v. U.S. Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-15796 ELEVENTH CIRCUIT
JULY 28, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
Agency No. A200-032-120
WU LIU,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(July 28, 2009)
Before BIRCH, HULL and WILSON, Circuit Judges.
PER CURIAM:
Wu Liu, a native and citizen of China, petitions for review of the Board of
Immigration Appeals’s (“BIA”) decision affirming the Immigration Judge’s (“IJ”)
order finding him removable and denying his application for asylum, withholding
of removal, and relief under the United Nations Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”). On
appeal, Liu argues that the IJ erred in finding that Liu’s testimony was not credible
and that he was not entitled to asylum, withholding of removal, or CAT relief. He
also contends that he is entitled to asylum, withholding of removal, or CAT relief
because he suffered past persecution or has a well-founded fear of future
persecution based on his activism in Falun Gong.
We lack jurisdiction to consider Liu’s arguments that he is entitled to
asylum, withholding of removal, or CAT relief based on his activism in Falun
Gong because he failed to raise these arguments before the BIA. Amaya-
Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250-51 (11th Cir. 2006) (per
curiam). Thus, the only issue before us is whether Liu has met his burden of
showing that the IJ’s adverse credibility determination was not based on substantial
evidence. Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1287 (11th Cir. 2005).
We review administrative fact findings, including credibility determinations,
under the substantial evidence test, which requires that the record evidence be
viewed in the light most favorable to the agency decision. Id. at 1286. We review
only the BIA’s decision unless the BIA expressly adopted the IJ’s decision. Ruiz v.
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Gonzales, 479 F.3d 762, 765 (11th Cir. 2007). Here, we review the decisions of
both the IJ and the BIA because the BIA adopted the IJ’s reasoning. Al-Najjar v.
Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001).
We are not permitted to substitute our judgment for that of the IJ with
respect to credibility findings, and we cannot overturn a credibility finding unless
the record compels it. Forgue, 401 F.3d at 1286-87. An adverse credibility
determination may not be reversed merely because the record may support a
contrary conclusion. Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1255 (11th Cir. 2006)
(per curiam). Under the highly deferential standard of review, we must affirm the
IJ’s credibility determination if it is supported by “reasonable, substantial, and
probative evidence on the record considered as a whole.” Forgue, 401 F.3d at
1286. The IJ is required to provide specific, cogent reasons for making an adverse
credibility finding, and the petitioner bears the burden of demonstrating that the
credibility finding was not supported by specific, cogent reasons or was not based
on substantial evidence. Id. at 1287. As amended by the REAL ID Act of 2005, 8
U.S.C. § 1158(b)(1)(B)(iii) provides:
Considering the totality of the circumstances, and all relevant factors,
a trier of fact may base a credibility determination on the demeanor,
candor, or responsiveness of the applicant or witness, the inherent
plausibility of the applicant’s or witness’s account, the consistency
between the applicant’s or witness’s written and oral statements
(whenever made and whether or not under oath, and considering the
circumstances under which the statements were made), the internal
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inconsistency of each such statement, the consistency of such
statements with other evidence of record (including the reports of the
Department of State on country conditions), and any inaccuracies 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. There is no
presumption of credibility, however, if no adverse credibility
determination is explicitly made, the applicant or witness shall have a
rebuttable presumption of credibility on appeal.
8 U.S.C. § 1158(b)(1)(B)(iii)); see also Kueviakoe v. U.S. Att’y Gen., 567 F.3d
1301 (11th Cir. 2009) (per curiam).
We disagree with Liu that the IJ’s adverse credibility finding was improper.
The IJ supported his adverse credibility finding with “specific, cogent reasons.”
The record shows that the IJ considered the totality of the circumstances in finding
inconsistencies in Liu’s testimony. First, Liu originally told immigration officials
that he came to the United States to live with an uncle, whose address and phone
number Liu did not know, but did not report that he was escaping persecution in
China. Liu also confused whether his father was arrested in 1998 or 1999 for
practicing Falun Gong, and was inconsistent about who else was in Liu’s prison
cell while he was under arrest. The IJ also found that Liu’s testimony about being
beaten and tortured “was not flush with the type of factual data that springs freely
to the mind of a person who has actually been imprisoned and beaten.” When
questioned about the principles of Falun Gong, Liu failed to demonstrate basic
knowledge of the practice. Liu offers explanations for all of these inconsistencies,
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but the record does not compel reversal because the IJ’s credibility determination
was supported by “reasonable, substantial, and probative evidence on the record
considered as a whole.” Forgue, 401 F.3d at 1286. Further, Liu’s argument that
the IJ could not consider Liu’s demeanor at the hearing is without merit because
the IJ may consider demeanor in assessing credibility. 8 U.S.C. §
1158(b)(1)(B)(iii).
Liu has failed to meet his burden of demonstrating that the IJ’s stated
reasons for the adverse credibility determination were not supported by substantial
evidence. The IJ’s determination was supported by the totality of the
circumstances, which included Liu’s inconsistent statements, demeanor, and lack
of knowledge about Falun Gong. Accordingly, we deny the petition as to the
adverse credibility determination, and dismiss the petition as to Liu’s arguments
that were not raised before the BIA.
PETITION DENIED IN PART AND DISMISSED IN PART.
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