IMG-231                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 09-3595
                                      ___________

                                   SHENG XIE CAI,
                                                       Petitioner

                                            v.

                 ATTORNEY GENERAL OF THE UNITED STATES
                    ____________________________________

                      On Petition for Review of an Order of the
                            Board of Immigration Appeals
                             (Agency No. A094-803-024)
                   Immigration Judge: Honorable Alberto J. Riefkohl
                     ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                     June 9, 2010

               Before: RENDELL, FISHER and GARTH, Circuit Judges.

                                 (Filed: June 17, 2010)
                                      ___________

                                       OPINION
                                      ___________
PER CURIAM

      Petitioner Sheng Xie Cai seeks review of the Board of Immigration Appeals’

(“BIA”) final order of removal. For the following reasons, we will deny his petition.

      Cai, a native and citizen of China, entered the United States on or about August 27,

2006. He was served with a notice to appear and conceded removability. As relief from
removal, Cai filed applications for asylum, withholding of removal, and protection under

the Convention Against Torture (“CAT”). In support of his claims for relief, Cai alleged

that he had been persecuted in China on account of his Christian faith.

       Before the Immigration Judge (“IJ”), Cai testified that on February 18, 2006, he

was on his way to church and became involved in an argument with a group of villagers

while speaking to them about Christianity. The conversation turned into a fight, and the

group began beating Cai. The police were called and Cai was taken to the police station

where he was interrogated. When Cai refused to answer the officials’ questions, they beat

him, including kicking him and punching him with their fists for about an hour. Cai

alleges that the police called his father, who was forced to pay a fine in exchange for

Cai’s release. The next day, Cai sought medical care for his injuries. Cai soon thereafter

left China. Once in the United States, he resumed practicing his faith and continues to

attend church. He was baptized on April 6, 2007, after he entered the United States.

       In considering Cai’s testimony and supporting evidence, the IJ determined that Cai

was not credible and denied all relief. Specifically, the IJ found that Cai’s in-court

testimony regarding Christianity was inconsistent with statements he made at his credible

fear interview. The IJ also emphasized that the credible fear interviewer concluded that

Cai did not have a basis for seeking asylum, which the IJ noted, is a major deviation from

the majority of cases where the recommendation is to continue the matter further for

analysis before the Immigration Court. Despite his claim that he was attending regular

meetings at an underground church from June 2004 until February 2006, Cai could not

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tell the interviewer who Jesus was or what baptism is, or offer one of the Ten

Commandments. However, he was able to answer non-religious questions with extreme

accuracy, such as details about his beating and how far his church was from his village.

This led the IJ to find that it appeared that Cai’s exposure to Christianity was only after

arriving in the United States and that his documentary evidence “clearly established a

pattern of either enhancement or even to give the impression to the court of something

that actually does not exist.” (JA 54-55.) As such, the IJ determined that, because Cai

was not credible, Cai failed to carry his burden of proof, and could not establish his

eligibility for asylum. The IJ also denied Cai’s applications for withholding of removal

and CAT protection.

       Cai sought review, and the BIA found no clear error in the IJ’s determinations.

The BIA found that the record supported the IJ’s observation that Cai was exposed to or

began to develop his faith after coming to the United States. Cai’s supporting

documentary evidence did not overcome his adverse credibility and failed to establish that

he faced persecution. Accordingly, the BIA denied all relief. Cai now petitions this

Court for review of the BIA removal order.

       We have jurisdiction to review the BIA’s final order of removal pursuant to 8

U.S.C. § 1252(a)(1). See Abdulai v. Ashcroft, 

, 548 (3d Cir. 2001). We

review these findings, including any credibility determinations, under a substantial

evidence standard. See Cao v. Att’y Gen., 

, 152 (3d Cir. 2005). Under the

substantial evidence standard, we must uphold the BIA’s decision unless the evidence not

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only supports a contrary conclusion, but compels it. See Abdille v. Ashcroft, 

, 483-84 (3d Cir. 2001). Because Cai filed his asylum application after the enactment

of the REAL ID Act, the inconsistencies, inaccuracies, or falsehoods upon which the

adverse credibility finding is based need not go to the heart of his claim. See Lin v. Att’y

Gen., 

, 119 n.5 (3d Cir. 2008). Rather, the REAL ID Act permits credibility

determinations to be based on observations of Cai’s demeanor, the plausibility of his

story, and the consistency of his statements. See 8 U.S.C. § 1158(b)(1)(B)(iii); Gabuniya

v. Att’y Gen., 

, 322 n.7 (3d Cir. 2006). An applicant bears the burden of

proving eligibility for asylum. Shardar v. Att’y Gen., 

, 312 (3d Cir. 2007).

       Cai argues that the IJ improperly relied on his credible fear interview in making an

adverse credibility determination because he was afraid and poor detention conditions

affected his statements. In support of this argument, Cai cites Balasubramanrim v. INS,

, 164 (3d Cir. 1998), and Senathirajah v. INS, 

, 218-21 (3d Cir.

1998), in which this Court held that inconsistencies between an airport statement and in-

court testimony before an IJ cannot alone support an adverse credibility finding. In

contrast to these two cases, Cai did not argue that he was deprived a translator, that he did

not understand the questions being asked, or that the record of the statements lacked an

indicia of reliability, nor did he challenge the interviewer’s conduct or any of his own

responses. See Chen v. Ashcroft, 

, 224 (3d Cir. 2004) (finding the IJ and

BIA reasonably relied on contradictory statements made at the airport interview and

before the IJ in determining the applicant lacked credibility). Rather, he argues that he

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was “confused,” even though he received the assistance of an interpreter and only

appeared confused by the questions relating to Christianity. Cai also fails to explain why

he was able to give very accurate answers to non-religious questions, but not to those that

explored his basic religious knowledge. Thus, the record supports the BIA’s adverse

credibility determination. See 8 U.S.C. § 1158(b)(1)(B)(iii).

       Cai also failed to provide sufficient additional evidence to support his claim of

persecution on account of religion.1 Although the record contains evidence showing that

Cai was beaten, there is not substantial evidence, if any, linking his physical attack to

being a Christian. For example, while letters submitted by Cai’s friend and pastor

reiterate his account of being beaten, the BIA found that “it is not clear that either

individual witnessed the actual event.” (JA 4.) The medical records he provided

confirmed that he sustained injuries, but again, do not constitute substantial evidence that

he was beaten on account of being a Christian. While Cai appears to disagree with how

the BIA construed the evidence, he does not show how a reasonable adjudicator would be

compelled to reverse the BIA’s determination and find that Cai suffered past persecution.




       1
         Cai argues that his due process rights were violated because the IJ failed to give
him notice of what evidence would be expected or any opportunity to explain why he did
not provide such evidence. The government correctly argues that this claim is
unexhausted. See Abdulrahman v. Ashcroft, 

, 594-95 (3d Cir. 2003) (a
petitioner “is required to raise and exhaust his or her remedies as to each claim or ground
for relief if he or she is to preserve the right of judicial review of that claim”).
Accordingly, because Cai did not raise this claim before the BIA, we lack jurisdiction to
consider it.

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       In addition, the BIA reasonably concluded that Cai failed to demonstrate a well-

founded fear of future persecution. The BIA noted that his family remains in China and

attends an underground church without incident. See Lie v. Ashcroft, 

, 537

(3d Cir. 2005) (family members’ continued presence without incident can undermine the

reasonableness of a petitioner’s fear of future persecution). Although Cai argues that he

is not similarly situated to his family members, he has not provided evidence that would

compel this Court to conclude otherwise. Thus, he cannot show that he is eligible for

asylum.

       As Cai fails to meet the burden for asylum, he fails to meet the higher burden for

withholding of removal. See Lukwago v. Ashcroft, 

, 182 (3d Cir. 2003).

Finally, although Cai raises an objection to the BIA’s denial of his CAT claim, he does

not develop his argument in the brief. Moreover, there is no evidence in the record to

show that he would face torture if removed to China. 

Accordingly, the

BIA properly denied all relief.

       For these reasons, the petition for review will be denied.




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