                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                             FEBRUARY 1, 2007
                            No. 06-12906                     THOMAS K. KAHN
                        Non-Argument Calendar                    CLERK
                      ________________________

                          BIA No. A97-661-054

WEI CHEN,


                                                        Petitioner,

                                  versus

U.S. ATTORNEY GENERAL,

                                                       Respondent.


                      ________________________

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

                           (February 1, 2007)

Before TJOFLAT, ANDERSON and HULL, Circuit Judges.

PER CURIAM:
      Wei Chen, a native and citizen of the People’s Republic of China, through

counsel, petitions for review of the decision of the Board of Immigration Appeals

(BIA). The BIA’s decision adopted and affirmed the Immigration Judge’s (IJ)

order removing Chen from the United States and denying his application for

(1) asylum, (2) withholding of removal, and (3) relief under the United Nations

Convention Against Torture (CAT) and under the Immigration and Nationality Act

(INA).

      Following a hearing on the merits of Chen’s application for asylum, the IJ

found that Chen was not credible and, for that reason, denied his application and

ordered him removed. On appeal, Chen argues that the IJ’s adverse credibility

finding was based not on objective facts, but rather on the IJ’s speculation,

conjecture, and unfounded personal opinions. Chen also argues that the IJ relied

too heavily on various reports from the U.S. State Department and foreign

countries. Chen further argues that the inconsistencies in the documentary

evidence are too minor to call his credibility into question. Finally, Chen argues

that the IJ’s denial of his application for asylum and for withholding of removal is

erroneous because the findings underlying the IJ’s decision are not supported by

substantial record evidence.

                                          I.



                                          2
      Because the BIA both adopted the IJ’s decision and made additional

findings, we review both the BIA’s decision and the IJ’s decision. Al Najjar v.

Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). We review factual

determinations, including credibility determinations, using the substantial evidence

test. Forgue v. United States Att’y Gen., 401 F.3d 1282, 1286 (11th Cir. 2005).

We will affirm if the decision “is supported by reasonable, substantial, and

probative evidence on the record considered as a whole.” Id. (citation and

quotation marks omitted). We review the record evidence in the light most

favorable to the agency’s decision and draw all reasonable inferences in favor of

that decision. Id. To conclude that the IJ or BIA should be reversed, we “must

find that the record not only supports that conclusion, but compels it.” Fahim v.

United States Att’y Gen., 278 F.3d 1216, 1218 (11th Cir. 2002) (citation and

quotation marks omitted). “[T]he mere fact that the record may support a contrary

conclusion is not enough to justify a reversal of the administrative findings.”

Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en banc), cert. denied,

544 U.S. 1035 (2005). To the extent that the IJ’s or BIA’s decision was based on a

legal determination, our review is de novo. Mohammed v. Ashcroft, 261 F.3d

1244, 1247-48 (11th Cir. 2001).

      The IJ must make an explicit credibility determination. Yang v. United

States Att’y Gen., 418 F.3d 1198, 1201 (11th Cir. 2005). In this case, the IJ
                                          3
explicitly found Chen’s testimony not credible. Id.. “Once an adverse credibility

finding is made, the burden is on the applicant alien to show that the IJ’s [or

BIA’s] credibility decision was not supported by ‘specific, cogent reasons’ or was

not based on substantial evidence.” Forgue, 401 F.3d at 1287. “The trier of fact

must determine credibility, and [we] may not substitute its judgment for that of the

[IJ or] BIA with respect to credibility findings.” D-Muhumed v. United States

Att’y Gen., 388 F.3d 814, 818 (11th Cir. 2004). In Nreka v. United States Att’y

Gen., 408 F.3d 1361, 1369 (11th Cir. 2005), we held that the IJ’s concerns about

the credibility of the applicant on “key elements of the claim,” and the applicant’s

failure to rebut these with sufficient corroborating evidence and explanation,

supported the finding that the applicant did not qualify for asylum. While some

Circuits have required the adverse credibility finding to go to the heart of the

asylum claim, see, e.g., Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002); see also

Gui v. Immigration & Naturalization Serv., 280 F.3d 1217, 1225 (9th Cir. 2002),

we have never adopted that test.

       The REAL ID Act expressly adopted a credibility standard for applications

made on or after May 11, 2005, setting out the following standard for determining

credibility:

       Considering the totality of the circumstances, and all relevant factors,
       a trier of fact may base a credibility determination on the demeanor,
       candor, or responsiveness of the applicant or witness, the inherent
                                           4
      plausibility of the applicant’s or witness’s account, the consistency
      between the applicant’s or witness’s written and oral statements
      (whenever made and whether or not under oath, and considering the
      circumstances under which the statements were made), the internal
      consistency of each such statement, the consistency of such statements
      with other evidence of record (including the reports of the Department
      of State on country conditions), and any inaccuracies or falsehoods in
      such statements, without regard to whether an inconsistency,
      inaccuracy, or falsehood goes to the heart of the applicant’s claim, or
      any other relevant factor.


8 U.S.C. § 1158(b)(1)(B)(iii) (as amended by the REAL ID Act § 101(a)(3)); see

also 8 U.S.C. § 1231(b)(3)(C) (making § 1158(b)(1)(B)(iii) applicable to

withholding of removal claims). The REAL ID Act is not applicable to Chen

because his application was filed on March 10, 2004.

      An alien who arrives in or is present in the United States may apply for

asylum. See INA § 208(a)(1), 8 U.S.C. § 1158(a)(1). The Attorney General and

the Secretary of Homeland Security have discretion to grant asylum if the alien

meets the INA’s definition of a “refugee.” See INA § 208(b)(1), 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,

                                         5
      nationality, membership in a particular social group, or political
      opinion . . . .

INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). The asylum applicant carries the

burden of proving statutory “refugee” status. See Al Najjar, 257 F.3d at 1284.

      An alien is entitled to asylum if he can establish, with specific and credible

evidence: (1) past persecution on account of his membership in a particular social

group or other statutorily listed factor, or (2) a “well-founded fear” that his

membership in a particular social group or other statutorily listed factor will cause

future persecution. 8 C.F.R. § 208.13(a)-(b); Al Najjar, 257 F.3d at 1287.

      An alien is entitled to withholding of removal under the INA if he can show

that his life or freedom would be threatened on account of race, religion,

nationality, membership in a particular social group, or political opinion. Mendoza

v. United States Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003); see also INA

§ 241(b)(3), 8 U.S.C. § 1231(b)(3). The alien bears the burden of demonstrating

that it is “more likely than not” that he will be persecuted or tortured upon his

return to the country in question. Fahim v. United States Att’y General, 278 F.3d

1216, 1218 (11th Cir. 2002). This is a more stringent burden than for asylum.

Sepulveda v. United States Att’y Gen., 401 F.3d 1226, 1232 (11th Cir. 2005). If

the alien establishes past persecution based on a protected ground, there is a

rebuttable presumption that his life or freedom would be threatened upon return to

                                           6
his country. See Mendoza, 327 F.3d at 1287; see also 8 C.F.R..§ 208.16(b)(1)(i).

An alien who has not shown past persecution, however, may still be entitled to

withholding of removal if he can demonstrate a future threat to his life or freedom

on a protected ground. See 8 C.F.R. § 208.16(b)(2). An alien cannot demonstrate

that his life or freedom would be threatened if the IJ finds that the alien could avoid

a future threat to his life or freedom by relocating to another part of the proposed

country of removal and, under all the circumstances, it would be reasonable to

expect the applicant to do so. Id. § 208.16(b)(2).

      To obtain relief under the CAT, the burden is on the applicant to establish

that it is “more likely than not” he will be tortured in the country of removal. 8

C.F.R. § 208.16(c)(2); Sanchez v. United States Att’y Gen., 392 F.3d 434, 438

(11th Cir. 2004). Torture is defined as:

      any act by which severe pain or suffering, whether physical or mental,
      is intentionally inflicted on a person for such purposes as obtaining
      from him or her or a third person information or a confession,
      punishing him or her for an act he or she or a third person has
      committed or is suspected of having committed, or intimidating or
      coercing him or her or a third person, or for any reason based on
      discrimination of any kind, when such pain or suffering is inflicted by
      or at the instigation of or with the consent or acquiescence of a public
      official or other person acting in an official capacity.

Id. § 208.18(a)(1). Because the burden regarding withholding of removal and CAT

relief is higher than the asylum standard, a petitioner who fails to establish

eligibility for asylum is usually unable to carry the burden regarding withholding
                                           7
of removal and CAT relief. See Forgue, 401 F.3d at 1288 n.4; Al Najjar, 257 F.3d

at 1303-04.

                                           II.

      Chen’s assertions that the IJ’s adverse credibility finding was not based on

any facts, that the IJ relied too heavily on various State Department and foreign

country reports, and that the inconsistencies in the record are too minor to call his

credibility into question are not supported by the record evidence. Rather, Chen’s

claim was substantially undercut because there were so many objective

inconsistencies in the record. See D-Muhumed, 388 F.3d at 819. For example,

Chen stated that he believed his departure from China would have helped him and

his wife have more children in the future, but, when questioned, he did not explain

why this would be true. In his asylum application statement, as well as during the

removal hearing, Chen indicated that he and his wife wanted to have more children

and that he thought leaving China was the best way to ensure their chances for

more children. Yet Chen—who left his wife and son—offered no indication that

he intended for his wife to join him in the United States at a later date.

      When Chen arrived in the United States he told an asylum officer that he ran

from Chinese family planning officers who visited his house to inquire about why

his wife had failed to show up for a routine checkup. Chen said that the officers

demanded that he pay a fine, and when he said that he did not have the money to
                                           8
pay, they ransacked his house and threatened to call the police. In his written

statement and at his removal hearing, however, Chen did not testify to those

events. Rather, he testified that he did, in fact, pay the fine when the family

planning officers visited his home in June 2003, and he provided documentary

evidence to support that statement. In addition, Chen said that he ran away after

family planning officials arrested his wife from his aunt’s house in September

2003. Chen’s only explanation for these consistencies was that he was nervous.

      The record also reveals omissions material to Chen’s asylum application. In

Chen’s written statement, he stated that only a vocal confrontation ensued when he

tried to protect his wife from the arrest. At the removal hearing, however, Chen

added facts to the events, specifically, that he engaged in a physical confrontation

with the family planning officials, that he accidentally hit one of the officials, and

that six neighbors came to help him.

      Also, at the removal hearing, Chen testified that it took him more than 10

minutes to travel by foot, although without shoes, between his aunt’s house and his

first friend’s house. Later, however, Chen testified that he spent approximately

four hours wandering back and forth between his aunt’s house and his first friend’s

house trying to see what happened following his wife’s arrest and thinking about

how he could protect his wife.



                                           9
      Upon arriving in the United States, Chen told the INS that someone had

given him an airplane ticket to fly to the United States for free. Later, at the

removal hearing, Chen testified that he paid a smuggler $60,000 to bring him to the

United States. Chen did not offer an explanation for these inconsistencies.

      In addition to the inconsistencies in Chen’s statements and testimony, he

was unable to provide basic information regarding his travels from China to the

United States. Specifically, besides Thailand, Chen was unable to name any of the

other countries through which he traveled on his way to the United States.

      Moreover, inconsistencies in the documentary evidence raised doubts as to

its authenticity. First, Chen’s wife’s identification number printed in the household

booklet had three more numbers, which were interspersed throughout the sequence,

than her identification number printed in her IUD booklet. Second, the State

Department and the United Kingdom reports regarding China’s family planning

policies do not support Chen’s assertion that his wife received an abortion

certificate subsequent to undergoing a forced abortion. Rather, the reports support

the government’s contention that abortion certificates are issued in the case of a

voluntary abortion, so that a woman can claim entitlement to two weeks worth of

paid sick leave following the procedure. Third, the abortion certificate did not

accurately reflect Chen’s wife’s age at the time of the abortion. Furthermore, Chen



                                           10
gave conflicting testimony with regard to whether his wife or mother requested the

abortion certificate, and what steps were taken to obtain the certificate.

        For these reasons, regardless of which standard we choose to employ, Chen

has not met his burden of demonstrating that the IJ’s decision was not based on

substantial evidence or specific, cogent reasons, as he has failed to either rebut or

explain many of the inconsistencies in his testimony. See Forgue, 401 F.3d at

1287.

                                          III.

        Accordingly, based on the above-mentioned inconsistencies, the record does

not compel reversal of the IJ’s adverse credibility determination. See Forgue, 401

F.3d at 1287. Thus, Chen failed to carry his burden of establishing past

persecution or a well-founded fear of future persecution, which precludes him from

being granted asylum. Consequently, because he did not establish that he was

eligible for asylum, Chen’s withholding of removal and CAT claims also fail. See

Al Najjar, 257 F.3d at 1292-93; Sanchez, 392 F.3d at 438 . Accordingly, we deny

the petition for review.

        PETITION DENIED.




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