[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JAN 4, 2007
No. 06-12429 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A78-863-166
BI LIAN LIU,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(January 4, 2007)
Before TJOFLAT, ANDERSON and BARKETT, Circuit Judges.
PER CURIAM:
Bi Lian Liu, a native and citizen of China. She entered the United States in
May 2002 without valid documentation. In answering questions put to her by the
immigration officials, she stated that she left China because she had been
persecuted on account of her political opinion and membership in a particular
social group.
In February 2003, Liu applied for asylum, withholding of removal under the
Immigration and Nationality Act (INA), and relief under the U. N. Convention
Against Torture (CAT). In her application, she amplified the details of the
persecution claim she had revealed to the immigration officials on entering the
United States, in May 2002. She provided the details of her alleged persecution for
a third time at the hearing on her asylum application before an Immigration Judge
(IJ). At that hearing, Liu admitted that neither she nor her parents belonged to any
group or organization in China, but claimed that she had been persecuted by the
government. She explained the persecution this way. A man, she later learned was
a police officer, entered her parents’ restaurant as she was about to close it and said
he wanted to marry her. She refused, so he raped her. She called her parents, then
the police. The police took her statement, but did not pursue the matter. When she
inquired, the police told her that the man was a police officer and accused her of
filing a false report. She testified that the man frequently came to her parents’
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restaurant thereafter; he would touch her and tell everyone present that he had
raped her.
At the close of her testimony, the IJ found Liu’s statement lacking in
credibility. In his oral dispositive opinion denying Liu’s application in full, the IJ
cited several inconsistencies between Liu’s hearing testimony and the statements
she made in her asylum application and to the immigration officials on entry into
the United States. Then, putting aside the issue of Liu’s credibility, the IJ found
that the actions taken against her were not based on her race, religion, sex, political
opinion or membership in a social group, or that the local Chinese government
assented to such actions. The IJ therefore denied her application for asylum,
withholding of removal, and CAT relief.
Liu appealed the IJ’s decision to the Board of Immigration Appeals (BIA).
The BIA affirmed, adopting the IJ’s decision as its own.1 Liu now petitions this
court for review.
Contrary to the IJ’s finding, Liu contends that her testimony was honest,
truthful, credible and consistent. She argues that the IJ did not consider the
conditions in China and the manner in which she will be punished if forced to
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The BIA rejected the IJ’s finding that Liu’s application for asylum was frivolous. The IJ’s
finding, and the BIA’s rejection thereof, is irrelevant in this appeal.
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return. She claims that she is entitled to relief under the CAT because the Chinese
government treats returnees harshly.
Findings of fact are reviewed under the “substantial evidence test,” and we
will affirm the BIA’s decision “if it is supported by reasonable, substantial, and
probative evidence on the record considered as a whole.” Forgue v. U.S. Attorney
Gen., 401 F.3d 1282, 1286 (11th Cir. 2005). Likewise, determinations of
credibility are also reviewed under the substantial evidence test. Id. Under the
highly deferential substantial evidence test, we “consider only whether there is
substantial evidence for the findings made by the BIA, not whether there is
substantial evidence for some other finding that could have been . . . made.”
Adefemi v. Ashcroft, 386 F.3d 1022, 1029 (11th Cir. 2004). We “cannot find, or
consider, facts not raised in the administrative forum, nor can we reweigh the
evidence from scratch.” Id. at 1027. In circumstances, such as this, where the BIA
adopts the decision of the IJ, we review the decision of the IJ to the extent that the
BIA expressly adopts the decision of the IJ. Al Najjar v. Ashcroft, 257 F.3d 1262,
1284 (11th Cir. 2001). Since the Board adopted the decision by the IJ to deny Liu
the relief she requested, we review the IJ’s analysis as if it were the Board’s and
determine whether it is supported by substantial evidence. See id.
The burden of proof is on an alien to establish that she is entitled to asylum.
Id. (citing 8 C.F.R § 208.13(a) (2001)). An alien is statutorily eligible for asylum
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if she is a refugee, a term defined as an individual unwilling to return to, and is
unable or unwilling to avail herself of the protection of, the country of her
nationality 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. Id. (citing INA § 208(b)(1)(A), 8 U.S.C. § 1158(b)(1)(A); INA
§ 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A)). Where the applicant does not supply
supporting documentation, an explicit adverse credibility determination is alone
sufficient to support the denial of an asylum application. Forgue, 401 F.3d at
1287; Yang v. U.S. Attorney Gen., 418 F.3d 1198, 1201 (11th Cir. 2005).
The IJ made an adverse credibility determination and specified several
incidences in which Liu’s testimony contradicted her asylum application and
statements she made to immigration officials upon entry. Liu did not provide any
supporting documentation to bolster her case. On this alone the IJ could have
denied relief, but he made the further finding that even if Liu was truthful, she did
not provide any proof that she fit the definition of a refugee. The record supports
both findings by the IJ. Thus, we conclude that substantial evidence supports the
IJ’s conclusion that Liu did not provide credible testimony that proves she was
persecuted on account of race, religion, nationality, membership in a particular
social group, or political opinion and affirm the decision by the IJ and the BIA to
deny her application for asylum.
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An alien is only eligible for withholding of removal to a country if she can
demonstrate that it is “more likely than not” she will be persecuted or tortured upon
being returned to her country, on account of her race, religion, nationality,
membership in a particular social group, or political opinion. Alim v. Gonzales,
446 F.3d 1239, 1255 (11th Cir. 2006). The standard for withholding of removal is
“more stringent” than the standard for asylum. Sepulveda v. U.S. Attorney Gen.,
401 F.3d 1226, 1232 (11th Cir. 2005). Since Liu failed to prove that she is entitled
to asylum, she could not have proven that she met the more stringent standard for
withholding of removal.
Liu also alleges that she is entitled to protection under the CAT. In order to
invoke the protection of the CAT, “an applicant must show that it is more likely
than not that she will be tortured in her home country at the hands of her
government or that her government will acquiesce in the torture.” Sanchez v. U.S.
Attorney Gen., 392 F.3d 434, 438 (11th Cir. 2004). When presented with a
petition for review of the denial of CAT relief, we uphold the factual determination
if it is supported by substantial evidence in the record. Al Najjar, 257 F.3d at
1283-84. The IJ found that even if Liu’s assaulter was a police officer, he acted
not on behalf of the government or under the acquiescence of government officials.
This view is buttressed by substantial evidence indicating that the attack was
personally motivated.
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In her brief to us, Liu argues that the IJ and BIA did not consider the country
conditions in China regarding the treatment of returned refugees. We may not
consider this issue, however, since it was not presented to the administrative
agency. 8 U.S.C. § 1252(b)(4)(A). Since Liu did not present a report of the
country conditions to the IJ or the BIA and the administrative decision to deny
protection under the CAT is supported by substantial evidence in the record, we
affirm the BIA.
PETITION FOR REVIEW DENIED.
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