Case: 14-12045     Date Filed: 12/24/2014   Page: 1 of 7


                                                             [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 14-12045
                             Non-Argument Calendar
                           ________________________

                            Agency No. A206-188-751

HUI FANG LIN,

                                                                           Petitioner,

                                      versus

U.S. ATTORNEY GENERAL,

                                                                         Respondent.

                           ________________________

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

                               (December 24, 2014)

Before MARCUS, WILSON and WILLIAM PRYOR, Circuit Judges.

PER CURIAM:

      Hui Fang Lin seeks review of the Board of Immigration Appeals’s (BIA)

final order affirming the Immigration Judge’s (IJ) denial of her application for
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asylum and withholding of removal under the Immigration and Nationality Act

(INA), and relief under the United Nations Convention Against Torture and Other

Cruel, Inhuman or Degrading Treatment or Punishment (CAT). Lin argues that the

IJ did not make a clean finding that she was not credible and that substantial

evidence does not support an adverse-credibility determination.

      We review the BIA’s decision as the final agency decision, except to the

extent that the BIA expressly adopts the IJ’s decision. Ruiz v. Gonzales, 

, 765 (11th Cir. 2007). When the BIA explicitly agrees with the findings of the

IJ, we will review the decision of both the BIA and the IJ as to those issues. Ayala

v. U.S. Att’y Gen., 

, 948 (11th Cir. 2010). Because the BIA issued its

own opinion in this case, we review the BIA’s opinion. See 

. However, because the BIA explicitly agreed with several findings of the IJ,

we review the decisions of both the BIA and the IJ as to those issues. See 

.

      We are without jurisdiction to review a final order of removal if a petitioner

fails to exhaust all available administrative remedies. Amaya-Artunduaga v. U.S.

Att’y Gen., 

, 1250 (11th Cir. 2006) (per curiam); 8 U.S.C.

§ 1252(d)(1). Accordingly, if the petitioner failed to raise her claim before the

BIA, we cannot consider the claim. 

.




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      We review factual determinations, which include credibility determinations,

under the substantial-evidence test. Ruiz v. U.S. Att’y Gen., 

, 1254–

55 (11th Cir. 2006) (per curiam). “[W]e must affirm the . . . decision if it is

supported by reasonable, substantial, and probative evidence on the record

considered as a whole.” 

marks omitted). “[W]e review the

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

reasonable inferences in favor of that decision.” 

(internal quotation

marks omitted). Accordingly, in order for us to conclude that a finding of fact

should be reversed, we must determine that the record compels reversal. 

for asylum must meet the INA’s definition of a refugee. 8

U.S.C. § 1158(b)(1)(A). The INA defines a refugee as:

      any person who is outside any country of such person’s nationality . . .
      and who is unable or unwilling to return to, and is unable or unwilling
      to avail himself or herself of the protection of, that country because of
      persecution or a well-founded fear of persecution on account of race,
      religion, nationality, membership in a particular social group, or
      political opinion.

Thus, in order to meet the definition of a refugee, the

applicant must, “with specific and credible evidence, demonstrate (1) past

persecution on account of a statutorily listed factor, or (2) a well-founded fear that

the statutorily listed factor will cause future persecution.” 

(internal quotation marks omitted).



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      The criteria for establishing eligibility for withholding of removal is

substantially the same as, but more stringent than, that for asylum. See Tan v. U.S.

Att’y Gen., 

, 1375 (11th Cir. 2006) (describing the standard for

withholding of removal). The functional difference is that an alien seeking

withholding of removal must demonstrate a “more likely than not” probability of

future persecution rather than the “reasonable possibility” required for asylum. See

id.; Sepulveda v. U.S. Att’y Gen., 

, 1231–32 (11th Cir. 2005) (per

curiam). Consequently, an alien generally cannot qualify for withholding of

removal if he is unable to meet the lower standard of proof for asylum. Al Najjar

v. Ashcroft, 

, 1292–93 (11th Cir. 2001).

      “To establish eligibility for CAT relief, an applicant must show that it is

more likely than not that he will be tortured by, or with the acquiescence of,

government officials if returned to the designated country of removal.” Todorovic

v. U.S. Att’y Gen., 

, 1324 (11th Cir. 2010); 8 C.F.R. § 208.16(c)(2).

      An applicant’s testimony, if credible, may be sufficient to sustain his burden

of proof, without corroborating evidence. 

. Conversely, if

the applicant relies solely on his testimony, an adverse-credibility determination

may alone be sufficient to support the denial of an application. Forgue v. U.S.

Att’y Gen., 

, 1287 (11th Cir. 2005). When the IJ makes an

adverse-credibility finding, the applicant must demonstrate the decision was not


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supported by “specific, cogent reasons” or was not based on substantial evidence.

(internal quotation marks omitted). Also, the IJ “must

make clean determinations of credibility.” Yang v. U.S. Att’y Gen., 

,

1201 (11th Cir. 2005) (internal quotation marks omitted).

      Pursuant to the REAL ID Act of 2005, Pub. L. No. 109-13 § 101, 119 Stat.

302, for applications filed after May 11, 2005, a credibility determination may be

based on the totality of the circumstances, including: (1) the demeanor, candor, 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; and (5) the consistency of the applicant’s

statements with other record evidence, including country reports. 8 U.S.C.

§ 1158(b)(1)(B)(iii). Moreover, an adverse-credibility determination may be based

on inconsistencies, inaccuracies, or falsehoods, regardless of whether they relate to

the heart of an applicant’s claim. 

tenable explanation for the falsehood

or inconsistency may not compel us to reverse, taking into account the record as a

whole. Chen v. U.S. Att’y Gen., 

, 1232–33 (11th Cir. 2006) (per

curiam); see also Xia v. U.S. Att’y Gen., 

, 1240–41 (11th Cir. 2010)

(holding that an adverse-credibility determination was supported where the

applicant’s testimony included at least one internal inconsistency and one

omission).


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      In the context of airport interviews, we have cautioned that an IJ should not

exclusively focus on interview omissions, keeping in mind that the alien is not

represented by counsel and may be intimidated by official questioning. Tang v.

U.S. Att’y Gen., 

, 1279 (11th Cir. 2009). Nonetheless, we have

drawn a distinction between hearing testimony that merely elaborates upon the

earlier interview, and that which “‘actually contradicts’” and “‘cannot be squared

with’” that interview. Shkambi v. U.S. Att’y Gen., 

, 1050 (11th Cir.

2009) (per curiam) (quoting 

). Thus, we upheld reliance on

inconsistencies between an applicant’s hearing testimony and his earlier statements

during airport and credible-fear interviews where the applicant did not merely give

a less detailed version of the facts in the interview, but omitted entire incidents and

other significant facts as well as directly contradicted his later testimony. See 

      A motion to reopen filed with the BIA shall not be granted unless the BIA

determines that the evidence sought to be offered is material and was not available

at the former hearing. 8 C.F.R. § 1003.2(c)(1). Also, a motion to reopen filed

while an appeal is pending before the BIA may be deemed a motion to remand for

further proceedings before the IJ. 

      As a preliminary matter, Lin failed to exhaust her argument that the IJ did

not make a clean and explicit adverse-credibility finding because she did not make


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that argument before the BIA, and, in fact, explicitly challenged the IJ’s adverse-

credibility finding. See 

. As for the IJ’s and

the BIA’s adverse-credibility finding, it was supported by specific, cogent reasons

and substantial evidence in the record, including Lin’s inconsistent testimony about

how she entered the United States, the number of arrests and the length of her

detentions, whether her family paid for her release from both detentions or only the

second one, and the implausibility as to her explanation concerning why she only

mentioned the November 2012 arrest during her credible-fear interview but stated

that she was detained for 15 days. Lin maintains that these are merely omissions

upon which she later elaborated, not inconsistencies. See 

.

However, the direct inconsistencies generally “cannot be squared with” one

another, and the omissions leave out significant facts. See 

. We therefore cannot say that it was clear error to find Lin’s testimony

incredible based on them. See 

BIA did not engage in

impermissible factfinding regarding the inconsistencies in Lin’s explanation for her

missing passport because the IJ made specific findings regarding the passport.

      Accordingly, upon review of the entire record on appeal, and after

consideration of the parties’ briefs, we deny the petition.

      PETITION DENIED.




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