Case: 13-12560    Date Filed: 02/07/2014   Page: 1 of 8


                                                        [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            _______________________

                                    No. 13-12560
                                Non-Argument Calendar
                              _______________________

                              Agency No. A087-604-252


      XIN MIAO,

                                                                        Petitioner,

                                        versus

      U.S. ATTORNEY GENERAL,

                                                                       Respondent.

                              _______________________

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

                                  (February 7, 2014)

Before HULL, JORDAN, and KRAVITCH, Circuit Judges.

PER CURIAM:

      Xin Miao seeks review of the Board of Immigration Appeals’ order

affirming the denial of her application for asylum, withholding of removal, and
              Case: 13-12560     Date Filed: 02/07/2014   Page: 2 of 8


relief under the United Nations Convention Against Torture and Other Cruel,

Inhuman and Degrading Treatment or Punishment (CAT). Ms. Miao, a native and

citizen of China, alleged that she had been persecuted, detained, and abused by

Chinese police for her participation in an underground Christian church. The

Immigration Judge denied relief, finding that Ms. Miao was not credible and failed

to meet her burden of proof due to lack of corroboration. The BIA affirmed, and

this appeal followed.

      On appeal, Ms. Miao argues that the BIA erred in upholding the IJ’s adverse

credibility determination without giving her notice and an opportunity to submit

additional corroborating evidence under a provision of the REAL ID Act, 8 U.S.C.

§ 1158(b)(1)(B)(ii). In addition, she contends that the denial of her application for

asylum, withholding of removal, and relief under the Convention Against Torture

is not supported by substantial evidence. After review of the administrative record

and consideration of the parties’ briefs, we deny Ms. Miao’s petition for review.



                                             I

      “Once an adverse credibility finding is made, the burden is on the applicant

alien to show that the IJ’s credibility decision was not supported by specific,

cogent reasons or was not based on substantial evidence.” Forgue v. U.S. Att’y

Gen., 

, 1287 (11th Cir. 2005) (internal quotation marks omitted).


                                             2
              Case: 13-12560     Date Filed: 02/07/2014   Page: 3 of 8


Because a credibility determination is a finding of fact, “we review the record

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

reasonable inferences in favor of that decision.” Ruiz v. U.S. Att’y Gen., 

, 1255 (11th Cir. 2006) (internal quotation marks omitted). We may not

reverse the credibility finding unless the record so compels. 

IJ and the BIA articulated specific, cogent reasons, supported by

record evidence, for the adverse credibility determination, and nothing in the

record compels reversal of this finding. Specifically, the IJ found that (1) a written

statement by Ms. Miao in support of the asylum application omitted key details of

her claim; (2) neither her written statement nor a letter submitted by her mother

mentioned that the Chinese police continued to visit her parents’ house, as she

testified before the IJ; (3) she gave inconsistent descriptions of her alleged

mistreatment by the Chinese police; (4) her testimony regarding her living

arrangements in China was contradicted by the Chinese household registration; (5)

her testimony regarding the details of her alleged arrest was contradicted by her

mother’s letter; and (6) she visibly struggled to name her church leader’s favorite

Bible story. The BIA correctly found that these inconsistencies and omissions

provided an appropriate basis for an adverse credibility finding under the REAL ID

Act. See 8 U.S.C. § 1158(b)(1)(B)(iii) (“a trier of fact may base a credibility

determination on the demeanor, candor, or responsiveness of the applicant or

                                             3
              Case: 13-12560    Date Filed: 02/07/2014   Page: 4 of 8


witness, . . . the consistency between the applicant’s or witness’s written and oral

statements . . . , the consistency of such statements with other evidence of record

. . . , and any inaccuracies or falsehoods in such statements”). Although Ms. Miao

argues that these inconsistencies are not significant enough to warrant an adverse

credibility determination, under the REAL ID Act, inaccuracies and omissions

need not go to the heart of the claim to support an adverse credibility finding. See

Chen v. U.S. Att’y Gen., 463 F.3d 1228,1233 (11th Cir. 2006). Ms. Miao also

provides various explanations for these inconsistencies and omissions, but we

decline her invitation to reweigh the evidence. See D-Muhamed v. U.S. Att’y Gen.,

, 818 (11th Cir. 2004) (“[T]his court may not substitute its judgment

for that of the BIA with respect to credibility findings.”). In any event, her

explanations, even if reasonable, do not compel reversal of the adverse credibility

determination.



                                            II

      Substantial evidence also supports the IJ’s and BIA’s conclusion that

Ms. Miao failed to provide reasonably available corroborating evidence. Aside

from two cursory letters written by her mother and a neighbor in China, Ms. Miao

submitted no documentary evidence in support of her claims of adherence to

Christianity and persecution by Chinese authorities. For example, she failed to


                                            4
              Case: 13-12560    Date Filed: 02/07/2014      Page: 5 of 8


submit any records concerning her alleged arrest, subsequent bond payment, and

weekly check-ins with the Chinese police. Neither her father—whom she alleged

paid the bond necessary to obtain her release from prison and helped her leave the

country by securing a job on a cruise ship—nor any member of her underground

church in China provided a statement in support of her claims. Nor did she

provide any documentation of her church membership or baptism in either China

or the United States. Although Ms. Miao offered several reasons why she failed to

submit this evidence, the record does not compel a finding that such evidence was

not reasonably available. For example, she testified that the police provided her

with no documentation of her arrest, but she did not claim that such records would

be unavailable if requested. In addition, Ms. Miao admitted that she could obtain

at least some documents to corroborate her claims but failed to explain why,

despite having more than two years between the submission of her asylum

application and her removal hearing, she failed to do so.

      Ms. Miao nonetheless argues that the REAL ID Act required the IJ to give

her notice and an opportunity to produce additional evidence after determining that

her testimony needed corroboration. Although we have not previously addressed

whether, and to what extent, the REAL ID Act requires notice of the need for

corroborating evidence, we need not reach this issue here because Ms. Miao does

not point to any statutory language or case law that could be read to impose such a

                                             5
              Case: 13-12560    Date Filed: 02/07/2014   Page: 6 of 8


requirement following an adverse credibility determination.             If 8 U.S.C.

§ 1158(b)(1)(B)(ii) contains a notice requirement at all, such a requirement would

only apply where the applicant’s testimony is “otherwise credible.”         See 

trier of fact determines that the applicant should provide evidence that

corroborates otherwise credible testimony, such evidence must be provided unless

the applicant does not have the evidence and cannot reasonably obtain the

evidence.”) (emphasis added). This reading of the Act appears to be in accord with

that of those circuits which have read the Act to include a notice requirement. See

Guta-Tolossa v. Holder, 

, 64 (1st Cir. 2012) (“If section

1158(b)(1)(B)(ii) does include a notice requirement, the requirement would only

apply where an IJ finds an applicant’s testimony ‘otherwise credible.’”); Ren v.

Holder, 

, 1092 n.13 (9th Cir. 2011) (“[N]otice and opportunity to

respond applies only in the case of an applicant deemed credible by the IJ.”). But

see Abraham v. Holder, 

, 633 (7th Cir. 2011) (holding that the REAL

ID Act does not require notice or an additional opportunity to provide

corroborative evidence before an adverse ruling). Because the IJ and BIA found

that Ms. Miao’s testimony was not credible, she had no right, statutory or

otherwise, to an additional opportunity to submit corroborating evidence in order

to remedy that determination.




                                            6
               Case: 13-12560     Date Filed: 02/07/2014    Page: 7 of 8


                                              III

      The BIA considered Ms. Miao’s application for protection under CAT

separately, finding that she failed to “establish that it is more likely than not that

. . . she would be tortured if removed to [China].”          8 C.F.R. § 208.16(c)(2).

Substantial evidence supports this conclusion. “Torture is an extreme form of

cruel and inhuman treatment and does not include lesser forms of cruel, inhuman

or degrading treatment or punishment . . . .” 

Ms. Miao

testified to being slapped repeatedly by the Chinese police during a three-day

detention following her arrest. While she alleges that she became dazed and

confused as a result, she did not otherwise claim that she suffered any form of

“severe pain or suffering.” See 

Her testimony, which the IJ

found lacked credibility, thus does not establish that Ms. Miao suffered past

mistreatment rising to the level of extreme cruel and inhuman treatment, and she

offered little else that could support a finding that it is more likely than not that she

would be tortured in the future if returned to China. See 

Accordingly, the BIA correctly found that Ms. Miao failed to satisfy her burden of

proof for withholding of removal under CAT.




                                               7
           Case: 13-12560    Date Filed: 02/07/2014   Page: 8 of 8


                                        IV

      For the foregoing reasons, we affirm the IJ’s and BIA’s denial of Ms.

Miao’s asylum and withholding of removal claims based on the adverse

credibility determination and a failure to provide corroborating evidence. We

further affirm the BIA’s denial of her claim to relief under CAT because

Ms. Miao failed to submit sufficient evidence to demonstrate that it was more

likely than not that she would be tortured upon her return to China.

   PETITION DENIED.




                                         8