[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPT 06, 2006
THOMAS K. KAHN
No. 05-15827
CLERK
Non-Argument Calendar
________________________
BIA No. A70-895-480
XIANG YONG WANG,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(September 6, 2006)
Before DUBINA, HULL and RONEY, Circuit Judges.
PER CURIAM:
Xiang Yong Wang, through counsel, petitions for review of the Board of
Immigration Appeals’ (“BIA”) decision affirming without opinion the immigration
judge’s (“IJ”) denial of asylum and withholding of removal. Based on the IJ’s
findings that Wang’s testimony was not credible, a decision uniquely the province
of the trier of fact, substantial evidence supports the decision that Wang failed to
meet his burden of proof on his various claims for relief. The petition for review is
denied.
Wang, a native and citizen of China, arrived in the United States in 1993
without a valid unexpired immigrant visa or other valid entry document and was
detained by the former Immigration and Naturalization Service (“INS”).
Subsequently, Wang filed an application for asylum based on his political opinion,
alleging that he was persecuted for violating China’s birth control policy.
Specifically, Wang stated that he and his wife had to run away from home after his
wife became pregnant with their second child, and that when they returned “[a]fter
[their] second child was born,”1 their hut had been destroyed and they were ordered
by the family planning workers to pay a fine. Wang claimed that the family
planning workers wanted his wife to be sterilized, but because she was in poor
1
Of particular note, Wang’s asylum application listed a name, Wang Xingqi, and date of
birth, August 20, 1992, for his second child.
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health she could not have the operation, and therefore, the family planning workers
“were forcing [Wang] to have the sterilization operation.” Thereafter, Wang
allegedly fled China in order to avoid being sterilized, and came to the United
States.
In 1996, the INS referred Wang’s case to an IJ for a hearing on his asylum
application after determining that he did not suffer past persecution or have a well-
founded fear of future persecution, and therefore, had not met his burden of
establishing his eligibility for asylum. In its assessment/referral memorandum, the
INS specifically found that “[n]o serious repricussions [sic] were taken against
[Wang’s wife] by birth control authorities” after she refused to undergo a
sterilization, and that she had continued to reside at the same address during the
four years following the original request without ever being forcibly sterilized.
In 2002, Wang, who was still in removal proceedings, filed several
documents in support of his asylum application, including an affidavit in which he
stated that he left China because he and his wife were subject to coercive birth
control measures against their will.
In 2004, Wang appeared before an IJ for a hearing on his asylum
application, and upon questioning by the IJ, Wang’s counsel explained that Wang
was seeking asylum based on a claim that his wife was forced to undergo an
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abortion, even though this was not the claim in the asylum application. Wang
attempted to explain this inconsistency by testifying that the people who had
prepared his application made a mistake, and that no one had ever read the
application to him before he signed it.
The IJ denied Wang’s claims for asylum, after making an adverse credibility
determination, finding that Wang failed to present consistent and sufficient
evidence to establish that his wife was forced to undergo an abortion, given that
(1) his asylum application made no mention of an abortion, but instead focused on
the threat of sterilization; (2) he never mentioned an abortion during his initial
airport interview with the INS; and (3) his asylum application provided a name and
date of birth for the second child, and the IJ found that Wang’s explanation for this
was not believable.
Wang appealed the IJ’s decision to the BIA, and the BIA affirmed without
opinion.
In his petition for review, Wang argues that his application for asylum,
withholding of removal, and protection under the United Nations Convention
Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment
(“CAT”) should have been granted because (1) the IJ erred by failing to consider
the record as a whole; and (2) he was denied due process when the IJ based the
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denial of his claim for asylum on inconsistencies between Wang’s testimony and
his initial asylum application.
When the BIA summarily affirmed the IJ’s decision without an opinion
under 8 C.F.R. § 1003.1(e)(4), the IJ’s decision became the final agency
determination subject to review. See Mendoza v. U.S. Att’y Gen., 327 F.3d 1283,
1284 n.1 (11th Cir. 2003).
A credibility determination, like other factual findings, is reviewed under the
substantial evidence test, and we “may not substitute [our] judgment for that of the
[IJ] with respect to credibility findings.” D-Muhumed v. U.S. Att’y Gen., 388 F.3d
814, 818 (11th Cir. 2004). “[A]n adverse credibility determination alone may be
sufficient to support the denial of an asylum application,” so long as the IJ offers
“specific, cogent reasons for an adverse credibility finding” and does not overlook
other evidence produced by the asylum applicant. Forgue v. U.S. Att’y Gen., 401
F.3d 1282, 1287 (11th Cir. 2005).
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. A credibility
determination, like any fact finding, may not be
overturned unless the record compels it.
Id. (quotations and citations omitted).
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Substantial evidence supports the IJ’s conclusion that Wang failed to meet
his burden of proof to establish his eligibility for asylum, and nothing in the record
compels us to reverse this finding. See Adefemi v. Ashcroft, 386 F.3d 1022, 1027
(11th Cir. 2004) (en banc), cert. denied, 125 S.Ct. 2245 (2005). The IJ made an
adverse credibility determination based primarily on two material inconsistencies
between Wang’s asylum application and his testimony at the asylum hearing,
namely whether Wang’s wife was forced to have an abortion and whether Wang
was ever detained and beaten. Because these credibility determinations are
supported by substantial evidence in the record, and because the IJ properly
considered Wang’s corroborating evidence, we affirm the IJ’s denial of asylum and
deny the petition for review as to this issue. See D-Muhumed, 388 F.3d at 818.
We note that there is no indication in the record that the IJ failed to consider the
entire record, or that Wang was denied a fair hearing.
As to withholding of removal, an alien is entitled to withholding of removal
under the INA if he or she can “show that his [or her] life or freedom would be
threatened on account of race, religion, nationality, membership in a particular
social group, or political opinion.” Mendoza, 327 F.3d at 1287; see also INA
§ 241(b)(3), 8 U.S.C. § 1231(b)(3). As a general rule, however, if “an applicant is
unable to meet the ‘well-founded fear’ standard for asylum, he is generally
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precluded from qualifying for either asylum or withholding of deportation.” Al
Najjar v. Ashcroft, 257 F.3d 1262, 1292-93 (11th Cir. 2001) (quotation omitted).
Because Wang failed to establish past persecution or a well-founded fear of
persecution sufficient to support his asylum claim, he cannot establish that he is
eligible for withholding of removal under the INA.
Wang also petitions for review of the denial of his claim for protection under
the CAT. Because Wang did not exhaust his administrative remedies with respect
to this claim, we hold that we lack jurisdiction to review this claim, and dismiss the
petition in part. See INA § 242(d)(1), 8 U.S.C. § 1252(d)(1); Fernandez-Bernal v.
Att’y Gen., 257 F.3d 1304, 1317 n.13 (11th Cir. 2001).
PETITION DENIED in part, DISMISSED in part.
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