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Lifeng Zhuo v. U.S. Attorney General, 11-10751 (2011)

Court: Court of Appeals for the Eleventh Circuit Number: 11-10751 Visitors: 20
Filed: Sep. 02, 2011
Latest Update: Feb. 22, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS No. 11-10751 ELEVENTH CIRCUIT Non-Argument Calendar SEPTEMBER 2, 2011 _ JOHN LEY CLERK Agency No. A099-667-280 LIFENG ZHUO, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. _ Petition for Review of a Decision of the Board of Immigration Appeals _ (September 2, 2011) Before WILSON, MARTIN, and BLACK, Circuit Judges. PER CURIAM: Lifeng Zhuo, a native and citizen of China, petitions
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                                                         [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                     ________________________           FILED
                                               U.S. COURT OF APPEALS
                            No. 11-10751         ELEVENTH CIRCUIT
                        Non-Argument Calendar    SEPTEMBER 2, 2011
                      ________________________        JOHN LEY
                                                       CLERK
                        Agency No. A099-667-280


LIFENG ZHUO,


                                                                 Petitioner,


                                 versus


U.S. ATTORNEY GENERAL,

                                                               Respondent.

                      ________________________

                  Petition for Review of a Decision of the
                       Board of Immigration Appeals
                       ________________________

                           (September 2, 2011)

Before WILSON, MARTIN, and BLACK, Circuit Judges.

PER CURIAM:
       Lifeng Zhuo, a native and citizen of China, petitions for review of the Board

of Immigration Appeals’s (“BIA”) order affirming the Immigration Judge’s (“IJ”)

denial of his application for asylum and withholding of removal under the

Immigration and Nationality Act (“INA”), and relief under the United Nations

Convention Against Torture (“CAT”). The IJ and BIA determined that Zhou was

not credible and denied relief.1 After review, we deny Zhou’s petition.

                                                I.

       “We review the decision of the [BIA], and we review the decision of the [IJ]

to the extent that the [BIA] expressly adopted the opinion of the [IJ].”

Kazemzadeh v. U.S. Att’y Gen., 
577 F.3d 1341
, 1350 (11th Cir. 2009) (quotation

marks omitted). Because the BIA issued its own opinion upholding the IJ’s

adverse credibility determination, we review only the BIA’s decision. See

Kueviakoe v. U.S. Att’y Gen., 
567 F.3d 1301
, 1304 (11th Cir. 2009). We review


       1
           Zhou did not challenge the IJ’s denial of CAT relief in his notice of appeal or brief
before the BIA. The BIA, however, addressed the issue sua sponte. Nevertheless, we lack
jurisdiction to consider Zhou’s present challenge because he did not exhaust his administrative
remedies on the claim. See Amaya-Artunduaga v. U.S. Att’y Gen., 
463 F.3d 1247
, 1250–51
(11th Cir. 2006) (explaining that we lack jurisdiction to consider a claim that an applicant did not
raise before the BIA, even if the BIA sua sponte addresses the claim, because the applicant did
not exhaust his administrative remedies). Accordingly, we dismiss Zhou’s petition to the extent
that it raises a claim for CAT relief. Zhou has also abandoned his claim for withholding of
removal under the INA by failing to offer argument on the claim. See Sepulveda v. U.S. Att’y
Gen., 
401 F.3d 1226
, 1228 n.2 (11th Cir. 2005) (“When an appellant fails to offer argument on
an issue, that issue is abandoned.”).

                                                 2
the BIA’s conclusions of law de novo, but we review findings of fact, including

credibility determinations, for substantial evidence to support them. Id.; Chen v.

U.S. Att’y Gen., 
463 F.3d 1228
, 1230–31 (11th Cir. 2006).

      “Our review for substantial evidence is highly deferential.” 
Kazemzadeh, 577 F.3d at 1351
. We must “affirm the [BIA’s] decision if it is supported by

reasonable, substantial, and probative evidence on the record considered as a

whole.” Forgue v. U.S. Att’y Gen., 
401 F.3d 1282
, 1286 (11th Cir. 2005)

(quotation marks omitted). In making that determination, “[w]e view the record

evidence in the light most favorable to the agency’s decision and draw all

reasonable inferences in favor of that decision, and we will reverse the agency’s

finding only if the evidence compels a reasonable fact finder to find otherwise.”

Todorovic v. U.S. Att’y Gen., 
621 F.3d 1318
, 1324 (11th Cir. 2010) (citations and

quotation marks omitted).

      In this case, we conclude that substantial evidence supports the BIA’s

finding that Zhou was not credible. Zhou offered inconsistent testimony at his

removal hearing. For example, on direct examination he testified that his wife was

forced to undergo sterilization on July 10, 1997 because she had a child before

their marriage was registered. Zhou stated that the Chinese government first

learned about the birth of their child when they registered their marriage on

                                         3
November 10, 1997—four months after his wife’s sterilization took place. On

redirect examination, however, Zhou testified that some time before his wife’s

sterilization a neighbor informed the Chinese government about his child’s birth.

Zhou’s testimony at his removal hearing was also inconsistent with statements in

his asylum application. Zhou testified that he was unaware of China’s age and

registration requirements for marriage. However, Zhou indicated in his asylum

application that he registered his marriage “once [he and his wife] reached the

marriage age.” An adverse credibility determination may be based on “the

inherent plausibility of the applicant’s or witness’s account, the consistency

between the applicant’s or witness’s written and oral statements . . ., [and] the

consistency of each such statement.” See 8 U.S.C. § 1158(b)(1)(B)(iii). After

review of the evidence, we conclude that the record does not compel us to

overturn the BIA’s adverse credibility finding.2 Accordingly, we deny Zhou’s

petition for review.

       PETITION DENIED.




       2
          In his brief, Zhou also challenges the IJ’s finding that, even if credible, Zhou is not
eligible for asylum. We decline to address that issue because the BIA did not review it. See
Ruiz v. Gonzales, 
479 F.3d 762
, 765 (11th Cir. 2007) (stating that this Court reviews only the
BIA’s finding and conclusions except those expressly adopted from the IJ’s order).

                                                 4

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