     Case: 15-60302      Document: 00513568594         Page: 1    Date Filed: 06/28/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-60302
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            June 28, 2016
ZHIQIANG SHA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Petitioner

v.

LORETTA LYNCH, U. S. ATTORNEY GENERAL,

                                                 Respondent


                       Petition for Review of an Order of the
                          Board of Immigration Appeals
                               BIA No. A088 485 274


Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge: *
       Zhiqiang Sha, a native and citizen of China, has filed a petition for
review of the order of the Board of Immigration Appeals (BIA) affirming the
denial of his application for asylum, withholding of removal, and protection
under the Convention Against Torture (CAT). In seeking relief from removal,
Sha claimed that he was arrested, detained, and beaten by Chinese police
because he participated in a protest in August 2007 concerning the loss of


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 15-60302

money he invested in a fraudulent ant farm pyramid scheme perpetuated by
the Yilishen Company. Sha asserted that he was released from police custody
only when he needed medical treatment. The police required him to check in
regularly, with the intention to imprison him when he was fully recovered.
      In affirming the denial of asylum and withholding of removal, the BIA
upheld the immigration judge’s finding that Sha was not a credible witness
and that he provided insufficient evidence corroborating his testimony. The
BIA determined that the immigration judge did not clearly err in relying on
significant inconsistencies between Sha’s testimony and his supporting
documents and the implausibility of his timeline of events. Among other
findings, the BIA noted that Sha’s testimony that he began losing money in
2005 from his Yilishen investment and that he protested in August 2007 was
inconsistent with the news articles in the record indicating that Yilishen did
not stop making payments and protests did not begin until October 2007, after
Sha had supposedly fled to a relative’s house in the countryside to escape the
police. The BIA further determined that Sha failed to cogently challenge the
denial of CAT relief, deeming the issue waived.
      Sha contends that the adverse credibility determination was based on
speculation and errors and that the BIA did not adequately consider his
explanations for discrepancies and the absence of corroborating documentary
evidence. Sha further contends that he was required to produce more
documentary evidence than a normal asylum seeker can produce, that details
omitted in a letter from his wife that was introduced into evidence did not go
to the heart of his claims, and that he should not be held responsible for his
wife’s writing and lack of sufficient detail.
      We review the order of the BIA and will consider the underlying decision
of the immigration judge only to the extent it was relied upon by the BIA. Dayo



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                                  No. 15-60302

v. Holder, 687 F.3d 653, 658 n.2 (5th Cir. 2012); Orellana-Monson v. Holder,
685 F.3d 511, 517 (5th Cir. 2012). On review, we defer to a credibility ruling
“unless, from the totality of the circumstances, it is plain that no reasonable
fact finder could make such an adverse credibility ruling.” Wang v. Holder, 569
F.3d 531, 538–539 (5th Cir. 2009) (quoting Lin v. Mukasey, 534 F.3d 162, 167
(2d Cir. 2008)). Under the REAL ID Act, which applies to Sha’s proceedings, a
court may make an adverse credibility determination based on any
inconsistency or omission, without regard to whether it goes to the heart of the
applicant’s claim, as long as the totality of the circumstances shows that the
alien is not credible. Id. at 537–39.
      Here, the inconsistencies and omissions cited by the BIA constitute
substantial evidence supporting the adverse credibility finding based on the
totality of the circumstances. See 8 U.S.C. § 1158(b)(1)(B)(ii), (iii); 8 U.S.C.
§ 1231(b)(3)(C); Wang, 569 F.3d at 538. Sha has failed to show that no
reasonable factfinder could disbelieve him. See Wang, 569 F.3d at 538.
      We review for substantial evidence the BIA’s factual determination that
an alien is not eligible for asylum or withholding of removal. Chen v. Gonzales,
470 F.3d 1131, 1134 (5th Cir. 2006). Based on the adverse credibility finding
against Sha, the BIA’s denial of asylum and withholding of removal satisfies
the substantial evidence standard.
      With respect to relief under CAT, we do not have jurisdiction to review a
claim for which the alien has not exhausted his administrative remedies. 8
U.S.C. § 1252(d)(1); Claudio v. Holder, 601 F.3d 316, 318 (5th Cir. 2010). The
alien “must fairly present an issue to the BIA to satisfy § 1252(d)’s exhaustion
requirement.” Omari v. Holder, 562 F.3d 314, 321 (5th Cir. 2009). We review
jurisdictional issues de novo. Claudio, 601 F.3d at 318.




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                                No. 15-60302

      Sha does not brief any argument regarding the BIA’s determination that
he waived the issue of his CAT claim by failing to adequately challenge the
denial of CAT relief before the BIA. Accordingly, Sha has waived in this court
any argument challenging the BIA’s determination. See Chambers v. Mukasey,
520 F.3d 445, 448 n.1 (5th Cir. 2008). Sha did not file a motion to reopen or
reconsider the BIA’s determination that he waived the issue of CAT relief. The
record reflects that Sha did not exhaust his administrative remedies as to the
denial of CAT relief, and this court thus lacks jurisdiction to separately
consider the denial of his CAT claim. See § 1252(d)(1); Claudio, 601 F.3d at
318–19.
      The petition for review is DENIED.




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