                                                                 [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT            FILED
                           ________________________ U.S. COURT OF APPEALS
                                                              ELEVENTH CIRCUIT
                                  No. 09-14080                   MAY 12, 2010
                             Non-Argument Calendar                JOHN LEY
                                                                    CLERK
                           ________________________
                            Agency Nos. A097-859-289
                                 A097-859-290

CUI CHEN,
YUYONG WENG,

                                                                         Petitioners,

                                       versus

U.S. ATTORNEY GENERAL,

                                                                        Respondent.

                           ________________________

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

                                   (May 12, 2010)

Before EDMONDSON, BIRCH and FAY, Circuit Judges.

PER CURIAM:

      Cui Chen (“Chen”) and her husband Yuyong Weng (“Weng”) (collectively,

“the Petitioners”), both citizens and natives of the People’s Republic of China,
petition for review of the Board of Immigration Appeals’ (“BIA”) decision

denying asylum and withholding of removal under the Immigration and

Nationality Act (“INA”) and the Convention Against Torture (“CAT”). We

DISMISS the petition for lack of jurisdiction as to the Petitioners’ asylum claims

because the BIA found that they were time-barred. We also DISMISS the petition

as to Chen’s claim for CAT relief for failure to exhaust administrative remedies.

Finally, we DENY the petition as to Chen’s claim for withholding of removal

under the INA.

                                    I. BACKGROUND

      Chen entered the United States in April 2000. In 2002, she met Weng, who

had entered the United States in January 2000. They married in March 2004. In

April 2004, Chen applied for asylum, withholding of removal, and CAT relief, and

named Weng as a derivative applicant.

      In May 2004, an asylum officer interviewed Chen in the presence of private

counsel and a Mandarin interpreter. Chen told the asylum officer that in 1999,

police officers interrogated her for one hour at a police station about her Falun

Gong activities, beat her on the neck, and detained her for two days until her

parents paid a fine of 2000 RMB.1 She was instructed to stop practicing Falun

Gong and to report once a week to the police station. Chen explained that she had

      1
          RMB refers to the renminbi, or Chinese yuan, which is China’s currency.
                                                2
been smuggled into the United States for $50,000 by a “snakehead.”

Administrative Record (“AR”) at 239. En route, she had spent seven to eight

months in Thailand and three to four months in Malaysia at the snakehead’s

apartment learning to speak Japanese so that she could pose as a Japanese citizen

when she entered the United States.

      In June 2004, Chen and Weng received a notice to appear before an

Immigration Judge (“IJ”), charging them with removability for entering without

valid documentation. Both conceded removability at a July 2004 hearing.

      A hearing on the merits occurred in May 2008. Chen testified that she was

persecuted in China because she practiced Falun Gong. When she was seventeen

years old, two police officers came to her school, took her to the police station, and

detained her for two days. They demanded to know the names of other Falun

Gong members. When Chen refused to answer, a police woman grabbed her hair

and hit Chen’s shoulder. Her parents secured her release after paying a 20,000

yuan fine. Chen initially stated the police asked her to report once every two

weeks thereafter, but later testified that she had to report weekly. Chen sought

medical treatment although her shoulder was not broken. She was subsequently

expelled from school because the practice of Falun Gong is illegal in China.

      Chen testified that she left China in April 1999 with a “snakehead” and

stayed in Thailand for almost a year before departing for Japan. Id. at 138-40, 150.
                                           3
On her way to Japan, she spent a few hours at the airport in Malaysia. She

explained her four-year delay in applying for asylum was caused by her

unfamiliarity with the English language and her lack of financial resources. She

stated that she continues to practice Falun Gong exercises two to three times per

week. If returned to China, she feared the police would arrest her and force her to

report to them based on her Falun Gong membership. She also feared she would

be forced to have surgery if she became pregnant again because since arriving in

the United States, she has given birth to two children.

      Chen’s husband, Weng, also testified at the hearing. He stated that Chen

practices Falun Gong privately once or twice a week. He does not want to return

to China because the Chinese government ransacked his parents’ home after his

mother gave birth to three children.

      The IJ first denied Chen’s application for asylum as time-barred because

Chen failed to demonstrate changed or extraordinary circumstances to excuse her

failure to file within a year of arrival. As the derivative applicant, Weng was thus

not only ineligible for asylum, but he was also ineligible for withholding of

removal under the INA and the CAT because neither permits derivative

withholding.

      The IJ then determined that both Chen and Weng were not credible. With

respect to Chen, the IJ gave the following reasons: (1) Chen testified that she was
                                          4
in Malaysia for only a few hours, but she told the asylum officer that she was in

Malaysia for three to four months learning how to speak Japanese; (2) Chen

testified she was beaten on her shoulder and required medical treatment, but she

told the asylum officer she was beaten on her neck and no medical treatment was

mentioned; (3) Chen testified that her parents paid 20,000 RMB for her release, but

Chen told the asylum officer and stated in her application that her parents paid

2,000 RMB; and (4) Chen had limited knowledge of Falun Gong and made no

showing why her private exercises would cause her difficulty with the Chinese

authorities. As for Weng, the IJ discredited his testimony based on his lack of

familiarity with Falun Gong exercises and the differences between his testimony

and his statements during the asylum interview.

      Next, the IJ found that the acts Chen testified about did not rise to the level

of past persecution. IJ also found Chen ineligible for withholding of removal

under the INA, which required her to show that it was more likely than not that she

would be persecuted if returned to China. According to the State Department

Country Reports, the Chinese government targets public practitioners of Falun

Gong, especially those who engage in group activities. Given that Chen practiced

Falun Gong privately in her home, the IJ concluded that she failed to show she

would be persecuted based on her Falun Gong activities. Likewise, Chen failed to

demonstrate that it was more likely than not that she would suffer from torture
                                           5
based on her Falun Gong practice, thus rendering her ineligible for relief under the

CAT.

       The BIA dismissed the appeal. It affirmed the IJ’s findings and conclusions

that Chen’s asylum application was time-barred. Even if the application was

timely filed, however, the BIA found that Chen failed to sustain her burden of

proof as to asylum or withholding of removal under the INA. Insofar as her claims

were based on her alleged Falun Gong activities, the BIA upheld the IJ’s adverse

credibility finding. To the extent Chen claimed a well-founded fear of future

persecution based on the births of her two children, the BIA agreed with the IJ that

the record failed to establish Chen would face sanctions, economic or otherwise,

amounting to persecution upon her return to China. Finally, the BIA noted that

Chen did not challenge the IJ’s denial of withholding under the CAT, and found no

reason to disturb the IJ’s decision on that matter.

       In their petition for review, Chen and Weng contend that the BIA and IJ

erred in denying their application for asylum and withholding of removal based on

an adverse credibility finding. They contend that the inconsistencies identified by

the IJ were trivial and peripheral to the heart of their claim. Additionally, they

argue that the IJ did not properly evaluate whether Chen had a well-founded fear of

future persecution based on her continued Falun Gong practices in the United

States.
                                           6
                                 II. DISCUSSION

A. Asylum Claims of Chen and Weng

      As a preliminary matter, the government argues that the BIA’s finding that

Chen’s asylum application was time-barred deprives us of subject-matter

jurisdiction over the Petitioners’ asylum claims. We review our subject-matter

jurisdiction de novo. Gonzalez-Oropeza v. U.S. Att’y Gen., 321 F.3d 1331, 1332

(11th Cir. 2003) (per curiam).

      An alien has one year after arriving in the United States in which to apply

for asylum. 8 U.S.C. § 1158(a)(2)(B) (2009). An untimely application may be

considered upon a showing that changed circumstances materially affect the alien’s

asylum eligibility or that extraordinary circumstances delayed the filing. Id.

§ 1158(a)(2)(D). No court has jurisdiction to review the Attorney General’s

determination regarding the timeliness of an application. Id. § 1158(a)(3).

      We agree with the government that we lack jurisdiction to review the denial

of Chen and Weng’s asylum claims. The BIA affirmed the IJ’s ruling that Chen’s

asylum application was untimely because she filed it approximately four years

after arriving in the United States and she did not qualify for any exception. We

may not review the BIA’s determination pursuant to 8 U.S.C. § 1158(a)(3). See

Chacon-Botero v. U.S. Att’y Gen., 427 F.3d 954, 957 (11th Cir. 2005) (per curiam)

(“Thus, we adhere to our existing precedent that 8 U.S.C. § 1158(a)(3) ‘divests our
                                          7
Court of jurisdiction to review a decision regarding whether an alien complied with

the one-year time limit or established extraordinary circumstances that would

excuse his untimely filing.’”). Accordingly, we dismiss the petition for lack of

jurisdiction as to the Petitioners’ asylum claims.

B. Withholding of Removal under the INA

      We review the BIA’s decision, “except to the extent that it expressly adopts

the IJ’s opinion.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001).

Where, as here, the BIA issues its own decision expressly adopting portions of the

IJ’s decision, we review the BIA’s decision and those parts of the IJ’s decision

expressly adopted by the BIA. See id. We review the BIA’s factual

determinations under the substantial evidence test, which requires us to affirm a

factual finding unless the record compels a reversal. Ruiz v. U.S. Att’y Gen., 440

F.3d 1247, 1254-55 (11th Cir. 2006) (per curiam).

      A credibility determination is a factual finding subject to the substantial

evidence test. Id. at 1255. Consistency on direct examination and with the written

application are indicators of reliable testimony. Id. Once an adverse credibility

finding is made, the applicant bears the burden of showing that this finding was

not based on specific, cogent reasons or substantial evidence. Id. “We may not

substitute our judgement for that of the IJ with respect to credibility findings.” Id.

(quotation marks, brackets, and citation omitted).
                                           8
        In a withholding of removal claim, an alien must show that her life or

freedom would be threatened in the country of removal because of her “‘race,

religion, nationality, membership in a particular social group, or political

opinion.’” Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1232 (11th Cir. 2005)

(per curiam) (quoting 8 U.S.C. § 1231(b)(3)(A)). The alien bears a higher burden

of proof than for asylum claims as she must show that it is “more likely than not”

that she will be persecuted if returned to her country. Id. (quotation marks and

citation omitted). Moreover, unlike asylum, the withholding statute does not grant

derivative rights for the spouse of a petitioner. See Delgado v. U.S. Att’y Gen.,

487 F.3d 855, 862 (11th Cir. 2007) (per curiam). Accordingly, as a derivative

applicant, Weng has no claim for withholding of removal under the INA.

       This leaves only Chen’s claim for withholding of removal based on her

Falun Gong activities.2 Our review of the record does not compel reversal of the

adverse credibility finding against Chen. The BIA concurred with Chen that minor

inconsistencies relating to peripheral facts, such as whether her parents paid 2000

RMB or 20,000 RMB for her release from the police station, did not alone support

the IJ’s adverse credibility finding. Nevertheless, the BIA noted that the credibility

finding was also supported by “material discrepancies” identified by the IJ which

       2
         Chen does not argue in her petition for review that she was entitled to withholding of
removal based on the birth of her two children in the United States. She has therefore abandoned
this argument. See Sepulveda, 401 F.3d at 1228 n. 2.
                                                 9
directly related to Chen’s alleged abuse. AR at 4. Specifically, the BIA cited to

the transcript of the hearing wherein Chen testified that a police officer hit her

shoulder, resulting in medical treatment. Yet Chen stated in her asylum application

and during the asylum interview that she was beaten on her neck, without

mentioning any medical treatment. Chen now argues in her petition that there is

not much difference between one’s neck and shoulder based on their close

proximity. However, Chen was specifically asked during the merits hearing to

point to her injured body part, and the transcript indicates she pointed to her

shoulder. At no time did she testify that her neck was beaten, as asserted in her

asylum application and interview. Given that this alleged beating was the sole

incident for her claim of persecution, we agree with the BIA that this difference

was material.

      In addition to this discrepancy, the IJ correctly noted that Chen testified

inconsistently with her asylum interview as to how long she stayed in Malaysia (a

few hours versus a few months). She also vacillated as to the reporting

requirement, initially stating that she was required to report to the police every two

weeks, and later changing it on cross-examination to every week, as stated in her

asylum application and during the asylum interview. We thus find substantial

evidence to support the agency’s adverse credibility finding in this case.

      Despite the adverse credibility finding against her, the IJ was still required to
                                           10
consider other evidence produced by Chen. See Ruiz, 440 F.3d at 1255. The IJ

considered but rejected Weng’s testimony as incredible – a finding not challenged

in the petition for review. In any event, Weng did not testify about Chen’s alleged

detention and beating by the police. However, the IJ’s decision does not reflect

whether she considered other documentary evidence submitted by Chen, such as:

(1) a February 1999 hospital report showing that Chen was prescribed Chinese

herbal medicine for injuries to her head, hand, feet, and back; (2) a 1998 Falun

Gong Membership Certification for Chen; (3) a news article describing the arrest

and torture in 2005 and 2006 of a prominent Falun Gong activist; and (4)

documents reporting allegations of organ harvesting of Falun Gong practitioners in

China. Instead, after determining that Chen and Weng were incredible, the IJ

stated that “[a]lmost the entire claim rests on their credibility as there is no

corroboration presented of the claim of arrest or mistreatment because [Chen]

practiced Falun Gong.” AR at 31-32. We lack jurisdiction to consider whether the

IJ erred in not considering Chen’s documentary evidence, however, because Chen

did not raise this issue in her appeal to the BIA.3 See Amaya-Artunduaga v. U.S.

Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006) (per curiam) (explaining that

pursuant to 8 U.S.C. § 1252(d)(1)’s exhaustion of remedies requirement, we lack

       3
        While Chen argued that the credibility finding was based on insignificant and
immaterial inconsistencies, she never specifically argued that the IJ erred in failing to consider
her documentary evidence after making the adverse credibility determination. See AR at 18-19.
                                                11
jurisdiction to consider a claim that was not raised before the BIA).

       Accordingly, we conclude that the record does not compel us to reverse the

BIA’s finding that Chen failed to sustain her burden of proof on her withholding of

removal claim.

C. CAT relief

       The BIA found that Chen failed to raise any arguments on appeal

challenging the IJ’s withholding of removal under the CAT.4 This finding is not

challenged in the petition for review. As Chen failed to exhaust her administrative

remedies on this issue, we lack jurisdiction to consider it. See Amaya-Artunduaga,

463 F.3d at 1250.

                                   III. CONCLUSION

       In sum, we conclude that we lack jurisdiction over the Petitioners’ time-

barred asylum claims and over Chen’s CAT claim; we therefore DISMISS the

petition as to those claims. The record does not compel reversal of the BIA’s

adverse credibility determination and we therefore DENY the petition as to Chen’s

claim for withholding of removal under the INA.

       PETITION DISMISSED IN PART AND DENIED IN PART.


       4
         Like the withholding statute, the CAT regulation does not mention derivative rights.
See 8 C.F.R. § 208.16(c)(2); see also Martinez v. U.S. Att’y Gen., 324 Fed. Appx. 829, 833
(11th Cir. 2009) (per curiam) (unpublished) (concluding that the applicant’s children have no
derivative benefits to CAT relief because the CAT regulation “seemingly forecloses a derivative
claim”). Accordingly, we do not address any claim for CAT relief with respect to Weng.
                                               12
