[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-14360 ELEVENTH CIRCUIT
MARCH 19, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
Agency No. A088-147-526
YUN CHEN,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(March 19, 2010)
Before BARKETT, HULL and MARCUS, Circuit Judges.
PER CURIAM:
Yun Chen, a Chinese national proceeding through counsel, petitions for
review of the Board of Immigration Appeals’ (“BIA”) final order affirming the
Immigration Judge’s (“IJ”) order denying his application for 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”). 8 U.S.C. §§ 1158,
1231; 8 C.F.R. § 208.16(c). On appeal, Chen argues that the IJ’s adverse
credibility determination was not supported by specific, cogent reasons, and that
the inconsistencies on record stemmed from translation errors caused by his
counsel below, for which he should not be held responsible. After thorough
review, we deny the petition.
When the BIA issues a decision, we review only that decision, except to the
extent that the BIA expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257
F.3d 1262, 1284 (11th Cir. 2001). To the extent that the BIA adopts the IJ’s
reasoning, we review the IJ’s decision as well. Id. In this case, the BIA issued a
written opinion, and, although it agreed with the IJ’s adverse credibility finding
and ultimate conclusion, it did not expressly adopt the rest of the IJ’s opinion in the
analysis. Accordingly, we review both the IJ’s and BIA’s opinions regarding the
adverse credibility determination, but not the underlying merits of Chen’s claims
because the BIA did not adopt that part of the IJ’s opinion. See id.
We review factual findings and credibility determinations under the
substantial evidence test. Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286 (11th
Cir. 2005). Under the substantial evidence test, we must affirm the IJ’s and BIA’s
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decisions if they are “supported by reasonable, substantial, and probative evidence
on the record considered as a whole.” Al Najjar, 257 F.3d at 1284 (quotation
omitted). “To reverse a factual finding . . ., [we] must find not only that the
evidence supports a contrary conclusion, but that it compels one.” Farquharson v.
U.S. Att’y Gen., 246 F.3d 1317, 1320 (11th Cir. 2001). The fact that evidence in
the record may also support a conclusion contrary to the administrative findings is
not enough to justify a reversal. Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th
Cir. 2004) (en banc).
An alien who arrives in or is present in the United States may apply for
asylum. 8 U.S.C. § 1158(a)(1). The Attorney General or Secretary of the
Department of Homeland Security has discretion to grant asylum if the alien meets
the INA’s definition of a “refugee.” 8 U.S.C. § 1158(b)(1). A “refugee” is:
any person who is outside any country of such person’s nationality or,
in the case of a person having no nationality, is outside any country in
which such person last habitually resided, 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[.]
8 U.S.C. § 1101(a)(42)(A). The asylum applicant carries the burden of proving
statutory “refugee” status. 8 C.F.R. § 208.13(a); Al Najjar, 257 F.3d at 1284. To
establish eligibility, the alien must establish, with specific and credible evidence,
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(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. 8 C.F.R. §
208.13(a) and (b); Al Najjar, 257 F.3d at 1287.
Regarding withholding of removal, an alien may qualify by showing “it is
more likely than not that [the petitioner’s] life or freedom would be threatened on
account of a statutorily protected factor if returned to [the country of removal].”
Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1243 (11th Cir. 2006). This standard is
more stringent than the standard for asylum. Sepulveda v. U.S. Att’y Gen., 401
F.3d 1226, 1232 (11th Cir. 2005). Accordingly, an alien who fails to establish
eligibility for asylum generally cannot satisfy the higher burden for withholding of
removal. Id. at 1232-33.
To qualify for CAT relief, an applicant must also meet standards more
stringent than those for asylum eligibility. Rodriguez Morales v. U.S. Att’y Gen.,
488 F.3d 884, 891 (11th Cir. 2007). The applicant carries the burden of proof to
establish “‘that it is more likely than not that he or she would be tortured if
removed to the proposed country of removal.’” Sanchez Jimenez v. U.S. Att’y
Gen., 492 F.3d 1223, 1239 (11th Cir. 2007) (quoting 8 C.F.R. § 208.16(c)(2)).
Like any finding of fact, a credibility determination may not be overturned
unless the record compels it. Forgue, 401 F.3d at 1287. “Indications of reliable
testimony include consistency on direct examination, consistency with the written
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application, and the absence of embellishments.” Ruiz v. U.S. Att’y Gen., 440
F.3d 1247, 1255 (11th Cir. 2006). If the IJ and the BIA explicitly determine that
the alien is not credible, they must give specific, cogent reasons for the adverse
credibility determination. Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1231 (11th Cir.
2006). “The burden then shifts to the alien to show that the IJ’s credibility
determination was not supported by specific, cogent reasons or was not based on
substantial evidence.” Id. (quotation omitted). The IJ and the BIA may deny
asylum based solely on an adverse credibility determination, especially when the
alien does not produce corroborating evidence. Id. However, if an applicant
produces evidence other than his testimony, “it is not sufficient for the IJ to rely
solely on an adverse credibility determination in those instances.” Forgue, 401
F.3d at 1287. “The weaker an applicant’s testimony, however, the greater the need
for corroborative evidence.” Yang v. U.S. Att’y Gen., 418 F.3d 1198, 1201 (11th
Cir. 2005).
Here, in denying Chen’s application, the IJ made an explicit adverse
credibility determination -- with which the BIA agreed -- and offered specific,
cogent reasons for the determination. See Chen, 463 F.3d at 1231. As the recod
shows, the IJ found and discussed in detail several specific instances of
inconsistencies between Chen’s argument and the record. The inconsistencies
involved: (1) the method of payment to the snakehead who smuggled Chen into the
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United States; (2) Chen’s actual place of residence in the United States; (3) Chen’s
identity because he failed to comply with fingerprint requirements; (4) the exact
year when Chen allowed his friends to practice Falun Gong in the old house; (5)
the arrest notice showing the name “Zhen Wu”; and (6) the medical condition
which prompted Chen to start practicing Falun Gong. Because the IJ and the BIA
provided specific, cogent reasons for their credibility determinations, the burden
shifted to Chen to show that the decision was unsupported by such reasons or was
not based on substantial evidence. See Chen, 463 F.3d at 1232.
Chen’s assertions on appeal fail to satisfy this burden. First, as noted, the
record contains numerous material inconsistencies, and, thus, does not support
Chen’s contention that he had testified consistently and credibly. Second, Chen
cannot rely on alleged translation errors by his attorney below to explain the
inconsistencies involving the Chinese notice of appeal and the letter from his
mother. Indeed, since attorney statements are not considered to be evidence, the
record here does not support Chen’s claims regarding the allegedly erroneous
translations. See Matter of Ramirez-Sanchez, 17 I. & N. Dec. 503, 506 (BIA 1980)
(holding that an attorney’s arguments are not evidence). Further, Chen’s related
argument -- that he should not be held responsible for his attorney’s errors below --
is without merit because a litigant is generally bound by all acts and omissions of
his attorney. See Link v. Wabash R.R. Co., 370 U.S. 626, 633-34 (1962) (holding
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that in the context of a negligence action, a party cannot avoid the consequences of
the acts or omissions of his freely selected attorney). Finally, because the IJ had
already found Chen’s corroborating evidence to be unconvincing based on the
material inconsistencies between his testimony and evidentiary submissions, the
IJ’s and BIA’s adverse credibility determination alone was sufficient to support the
denial of asylum and withholding of removal. See Forgue, 401 F.3d at 1287.
In sum, substantial evidence from the record as a whole supports the IJ’s and
BIA’s adverse credibility determination and does not compel us to draw a different
conclusion regarding Chen’s asylum and withholding of removal claims. See
Farquharson, 246 F.3d at 1320. We therefore deny the petition for review.1
PETITION DENIED.
1
We also deny Chen’s petition for review regarding the CAT claim because he fails to
offer an argument challenging the BIA’s finding that he had waived the CAT claim below. See
Sepulveda, 401 F.3d at 1228 n.2 (holding that an issue is abandoned if the petitioner fails to
proffer argument on its merits on appeal).
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