IMG-072                                                      NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 11-3975
                                     ___________

                                      DALI MA,
                                              Petitioner

                                           v.

                ATTORNEY GENERAL OF THE UNITED STATES,
                                     Respondent

                      ____________________________________

                        On Petition for Review of an Order of the
                            Board of Immigration Appeals
                              (Agency No. A089 203 802)
                       Immigration Judge: Honorable Susan Roy
                      ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   May 16, 2012

            Before: AMBRO, ALDISERT and NYGAARD, Circuit Judges

                             (Opinion filed: May 21, 2012)
                                    ___________

                                      OPINION
                                     ___________

PER CURIAM

      Dali Ma petitions for review of a decision of the Board of Immigration Appeals

(“BIA”) dismissing his appeal of an Immigration Judge’s (“IJ”) decision denying his
applications for relief from removal. For the reasons that follow, we will deny the

petition for review.

       Dali Ma is a native and citizen of China who came to the United States in October

2007. The Department of Homeland Security issued a notice to appear charging that Ma

is subject to removal because he lacked a valid travel document at the time of his entry.

Through counsel, Ma conceded that he is removable from the United States. Ma applied

for asylum, withholding of removal, and protection under the Convention Against

Torture (“CAT”). Ma claimed that he was persecuted in China on account of his

resistance to China’s family planning policies.

       In support of his applications, Ma testified that, after the birth of his daughter,

family planning officials forced his wife to have an IUD inserted. Ma and his wife later

had the IUD removed and Ma’s wife learned she was pregnant in April 2007. Ma’s wife

hid at her sister’s house so that family planning officials would not discover the

pregnancy. On May 12, 2007, however, family planning officials went to Ma’s sister-in-

law’s home and took his wife in order to perform an abortion. Ma picked up a chair and

threatened one of the officials, who called the police. The police arrested Ma and

detained him until May 18, 2007.

       Ma further testified that the police tied him to a pipe and beat him with leather

belts and batons on his head, shoulders, and back every day during the week he was

detained. Ma stated that he suffered soft tissue injuries until the last day of his detention,

when the police hit him over the head with a chair and his head began to bleed. The
                                              2
police then contacted his brother, who paid a fine on his behalf. The police released Ma

and he immediately sought medical treatment for his head injury. On cross-examination,

the Government pointed out that, although Ma had testified that he was severely beaten

for a week, his medical record only reflects his head injury.

       The IJ found Ma not credible. The IJ explained that Ma’s testimony was initially

consistent with his written affidavit but began to unravel on cross-examination. The IJ

stated that Ma’s testimony was not forthright or understandable when he was asked about

the level of harm he suffered while he was in detention. The IJ found that Ma’s medical

record shows that he suffered a head injury requiring stitches, but that the medical record

does not reflect that Ma suffered any other injuries and he could not give a clear

explanation for this omission.

       The IJ also noted that the medical report reflects that Ma’s head injury was

inflicted a half an hour before he arrived at the hospital. The IJ found it implausible that

within a half an hour of the injury the police could have called his brother, his brother

could have come to the station to pay the fine, and his brother could have taken Ma to the

hospital. The IJ also questioned why the police released Ma to seek medical attention

instead of taking him for treatment themselves, but stated that she need not speculate

about these events. The IJ stated that the receipt for the fine reflected other

inconsistencies, including that Ma, and not his brother, had paid the fine, and that the fine

was levied for a Social Security violation. The IJ also noted that Ma first testified that he

had confessed to violating family planning policies before he was hit over the head, but
                                              3
later stated that he did not admit his guilt until after he was hit over the head.

       The IJ further found that other documents Ma had submitted did not fully support

his claim. The IJ stated that Ma had submitted a letter from his wife and she did not

mention that he was detained for a week, that he had suffered a head injury, or that his

brother had paid the fine. The IJ also did not give any weight to a document submitted to

corroborate the forced abortion because there was an error in the translation, which called

the document into question. Having found Ma not credible, the IJ denied Ma’s

applications for asylum and withholding of removal.1 The IJ also denied CAT relief.

       On appeal, the BIA found no clear error in the IJ’s factual findings, including her

adverse credibility finding. The BIA stated that Ma was given the opportunity to explain

the inconsistencies in the evidence and found that Ma’s testimony regarding the level of

harm he suffered was internally inconsistent and not reflected in his medical record. The

BIA also noted the change in Ma’s testimony as to whether he was hit with a chair before

or after he confessed to violating the family planning policy. The BIA agreed with the

other reasons the IJ presented in her decision for the adverse credibility finding and

concluded that, absent credible testimony, Ma did not prove that he suffered past

persecution or has a well-founded fear of future persecution. The BIA further found that

Ma did not establish his claim with the other evidence submitted. This petition for


1
 The IJ further found that, even if credible, Ma did not meet his burden of proof for
asylum or withholding of removal. The BIA did not expressly address this ruling in
upholding the IJ’s decision.

                                               4
review followed.2

       We have jurisdiction pursuant to 8 U.S.C. § 1252(a). We review the agency’s

factual findings, including adverse credibility findings, for substantial evidence. Lin v.

Att’y Gen., 543 F.3d 114, 119 (3d Cir. 2008). Under this standard, we will uphold the

agency’s findings “unless any reasonable adjudicator would be compelled to conclude to

the contrary.” Id. (citations omitted).

       Under the Real ID Act, a credibility determination can be based on an applicant’s

responsiveness, the inherent plausibility of his story, the consistency of the evidence, and

other factors, without regard to whether inconsistencies and inaccuracies go to the heart

of the applicant’s claim. 8 U.S.C. § 1158(b)(1)(B)(iii). This provision of the Real ID Act

applies to Ma’s asylum application, which was filed after May 11, 2005. Chukwu v.

Att’y Gen., 484 F.3d 185, 189 (3d Cir. 2007).

       Ma argues in his brief that the IJ’s adverse credibility finding is not supported by

substantial evidence and that his testimony is consistent with the medical reports. Ma

states that the reports reflect that he was struck on the head multiple times, which is

consistent with his testimony that police beat him multiple times over the week he was

detained. Ma admits there is nothing in the reports showing that he was beaten on other

parts of his body, but contends that the absence of such evidence does not mean that

those injuries did not exist.


2
 The BIA also concluded Ma did not meet his burden of proof on his CAT claim. Ma
does not pursue this claim in his petition for review.
                                               5
       Although Ma challenged in his administrative appeal the IJ’s reliance on his

medical records to support her adverse credibility finding, Ma did not assert before the

BIA that his medical records reflect that he was struck on the head multiple times. To the

extent this argument is properly before us, Ma has not shown that the record compels the

conclusion that his testimony and medical records are consistent. The reports reflect that

Ma suffered multiple soft-tissue injuries on his head. Ma, however, testified that he was

beaten with batons and belts for six or seven consecutive days all over his body, that he

was tortured, and that he thought he was going to die. In his written statement, Ma noted

that his body was “covered with bruises.” A.R. at 435. We find no error in the IJ’s

reliance on the fact that Ma’s medical records only note a head injury to support her

adverse credibility finding.

       Ma further argues that the IJ and BIA erred in faulting him for changing his

testimony regarding whether family planning officials hit him with the chair before or

after he admitted his guilt. Ma asserts that the IJ and BIA neglected the fact that his

medical records show that he suffered a concussion as a result of his head injury. He

contends his memory of the events was not completely clear. In his appeal to the BIA,

Ma did not dispute the IJ’s statement that his testimony was confused in this regard. This

argument is thus not properly before us. Kibinda v. Att’y Gen., 477 F.3d 113, 120 n.8

(3d Cir. 2007).

       Ma does not challenge in his brief any of the other bases for the IJ’s adverse


                                             6
credibility finding. Accordingly, we will deny the petition for review.3




3
 Ma contends in his brief that he established past persecution on account of his resistance
to China’s family planning policy. Because Ma has not shown that the agency’s adverse
credibility determination is not supported by substantial evidence, we need not address
this argument.
                                             7
