                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0219n.06

                                           No. 09-4469

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                         FILED
                                                                                      Apr 08, 2011
                                                                                LEONARD GREEN, Clerk
ZHI ZENG CHEN,                                        )
                                                      )
       Petitioner,                                    )       ON REVIEW FROM THE BOARD
                                                      )       OF IMMIGRATION APPEALS
v.                                                    )
                                                      )
ERIC H. HOLDER, JR., Attorney General                 )
                                                      )
       Respondent.                                    )


Before: SUTTON and KETHLEDGE Circuit Judges; and HOOD, Senior District Judge.*

       PER CURIAM. Petitioner Zhi Zeng Chen (“Petitioner”) seeks judicial review of a

November 20, 2009, decision of the Board of Immigration Appeals (“BIA”), which dismissed

Petitioner’s appeal from the immigration judge’s decision denying his applications for asylum,

withholding of removal, and protection under the Convention Against Torture. Petitioner argues that

his due process rights have been violated because the immigration judge erroneously concluded that

his application for asylum was untimely and because incompetent interpretation during the

proceeding before the Immigration Court prevented him from having a full and fair hearing. He

argues, as well, that the decision to deny his applications was not supported by substantial evidence

because the immigration judge erroneously concluded that his testimony was not credible and, thus,

that his claims were without support.

       For the reasons which follow, we DENY the relief requested in the Petition.



* The Honorable Joseph M. Hood, Senior United States District Judge for the Eastern District of
Kentucky, sitting by designation.
I.     Background

       Petitioner is a native and citizen of the People’s Republic of China. He arrived in the United

States at or near the Miami International Airport on November 27, 2004, without valid entry

documents. A credible fear interview was conducted on December 9, 2004. During that interview,

Petitioner testified, under oath, that he had been mistreated, threatened, and slapped by members of

a Falun Gong group of which he was a member. He also testified that he feared the Falun Gong

group because they had threatened to kill him when he tried to distance himself from the group after

he witnessed them participating in activities declared illegal by the Chinese government. At the

same time, Petitioner explained that he feared that government authorities could arrest him because

he attended Falun Gong meetings. Chen’s case was referred to an immigration judge in Miami.

       On March 24, 2005, Petitioner filed a motion to change venue to the United States

Immigration Court located in New York, New York, admitted the allegations set forth in the Notice

to Appear, and conceded the charge of removability. His motion was granted on April 11, 2005, and

Petitioner appeared at the New York Immigration Court on June 22, 2005. There, he requested relief

in the form of asylum, withholding of removal, and protection under the Convention Against

Torture. He was notified that he should return to the court on August 24, 2005, with his applications

for relief, or his applications would be deemed abandoned.

       On August 12, 2005, Petitioner sought to change venue to the Immigration Court in

Cleveland, Ohio, and his motion was granted on August 23, 2005. Petitioner appeared there for the

first time on November 29, 2006. On August 1, 2007, Petitioner submitted applications for asylum,

withholding of removal, and protection under the Convention Against Torture to the Immigration

Court in Cleveland and requested an individual hearing date on his applications. In his applications,

Chen indicated that he was seeking relief based on religious grounds, namely his new-found

Christian faith. He explained that, since his arrival in the United States, he had been learning about

                                                  2
Christianity from his uncle and attending church in New York and, later, Ohio. He stated that he

feared persecution as a Christian in China. He also admitted that he did not tell the truth to the

immigration officer who conducted his credible fear interview, explaining that he told the

immigration officer what the “snakehead,” or human smuggler, had told him to say for fear that he

would be sent back to China.

        A removal hearing was conducted on February 27, 2008, before the United States

Immigration Court in Cleveland with the assistance of an interpreter, who provided translation of

the proceedings in English into Mandarin Chinese for Petitioner and translation of his responses into

English for the benefit of the court. During that hearing, Petitioner testified that, after his arrival in

the United States and while living in Cambridge, Ohio, he would visit his uncle in New York every

six weeks. During those visits, his uncle, a Christian, told him about the Bible and took him to the

Grace Fujinese Church, where services were held in the Fu-zhou dialect. Eventually, his uncle

referred him to a church in Ohio, but, because the services there were in English, Petitioner decided

to continue attending services at the Grace Fujinese Church. He would travel to New York two or

three times a month by bus on Saturday night, returning to Ohio on Sunday night or Monday.

Petitioner’s uncle was unable to testify at the hearing because he was in the hospital after breaking

his spine.

        Petitioner confirmed during cross-examination that he did not tell the truth during his

credible fear interview nor could he recall what reason he gave the immigration officer for his fear

of returning to China, even though he estimated his testimony during that interview to be “fifty

percent true, fifty percent false.” He admitted that he had never practiced Falun Gong in China, had

never been harmed or threatened by a member of a Falun Gong group, and never had a fear of

returning to China due to any practice of or association with Falun Gong.



                                                    3
        Petitioner testified alternatively that he had forgotten why he came to the United States, that

he was smuggled into the United States, and that he came to the United States because there is

freedom of religion. He also testified that he began attending church services on Sundays at the

Grace Fujian Church once a month in April 2005 and that he attended the church 23 and 28 times,

respectively, in 2006 and 2007. Petitioner submitted a letter from the minister at the Grace Fujian

Church stating that Petitioner had been attending the Church for Wednesday services since June 24,

2007. When questioned about the discrepancy with his own testimony concerning the length of time

that he had attended the church and for which services he attended during the week, he explained

that there was a mistake because he did not attend Wednesday services and that the date could be

explained because he had not registered or signed in at the church when he first attended.

        During the hearing, Petitioner testified that, prior to becoming a Christian, he was a Taoist.

When asked if action had ever been taken against him by the Chinese authorities for being Taoist

or practicing Taoism, he testified that he was arrested in July 1998 and detained for two months for

practicing Taoism because the police said that Taoism was a form of superstition. The incident was

not listed on his asylum application. Petitioner testified that he had not discussed his Taoism or the

1998 incident in his application for asylum because he “didn’t know [he] should write it down.” [AR

at 122.]

        Petitioner also testified that a different attorney than the one representing him at the hearing

had filed an asylum application for him sometime in 2005, distinct from the 2007 application in the

record. He did not have a copy of the purported 2005 application. Nonetheless, Petitioner’s

attorney, Stuart Altman, stated to the court that his client was mistaken and that he had, in fact, sent

an I-589 asylum application on November 14, 2005, to the Immigration Court in Cleveland. Altman

was prepared to present an overnight mailing receipt to demonstrate that he had mailed an I-589 to

the court’s address at that time. Altman explained that it was not delivered because the opening of

                                                   4
the Immigration Court was delayed and that the Cleveland court did not ultimately open its doors

until September 2006.

       At the conclusion of the hearing, the immigration judge found Petitioner removable and

denied Petitioner’s applications for asylum, withholding of removal, and protection under the

Convention Against Torture. As grounds for denying his applications, the immigration judge

determined that Petitioner’s application for asylum contained in the record was untimely because

there was no evidence of any application for asylum filed within one year after his arrival in the

United States, as required by 8 U.S.C. § 1158(a)(2)(B). He was not persuaded that any filing had

even been attempted because, notwithstanding Altman’s efforts to introduce an overnight mailing

receipt as evidence of a timely filed application, Petitioner insisted that someone else had submitted

that document, which was not available. The immigration judge continued, stating that the

application for asylum would have been denied even if it had been timely filed because there was

no persuasive evidence that he had experienced past persecution or that he had a subjectively real

and objectively reasonable fear of future persecution on account of religion. The immigration judge

stated that he believed Petitioner’s testimony that he had been subject to past persecution as a Taoist

to be fabricated and that he did not believe that Petitioner was an actively practicing Christian, his

testimony to the contrary notwithstanding, because he found Petitioner’s testimony on the whole to

be incredible.

       The immigration judge’s credibility decision turned on the fact that he found Petitioner to

be “not believable in any respect” because of (1) his previously demonstrated willingness to lie under

oath, citing the false but “elaborate tale of persecution” which Plaintiff had crafted in the credible

fear interview, (2) his demeanor, (3) the inconsistency of Petitioner’s statements about attending a

church on Sundays in New York almost half the weeks in a given year over the course of nearly three

years with a letter from his minister stating that Petitioner had attended on Wednesdays for less than

                                                  5
a year, and (4) his failure to mention his claim of a past persecution on the basis of his former Taoist

faith in his asylum application when the claim before the Immigration Court was premised on a

purported fear of persecution in China because of religion.

        As the Petitioner had failed to meet the relatively low threshhold required to prove that he

was a refugee for the purpose of obtaining asylum, the immigration judge concluded that he had

necessarily failed to meet the higher standard required to prove a claim for withholding of removal.

The immigration judge also concluded that Petitioner had presented no evidence to suggest that he

would more likely than not be subject to torture if he returned to the People’s Republic of China and

denied his application for protection under the Convention Against Torture on those grounds.

        On March 12, 2008, Petitioner filed a Notice of Appeal to the BIA; he filed a supplemental

brief on May 13, 2008. In those filings, Petitioner argued that the immigration judge erred when he

found Petitioner incredible and that substantial evidence did not support the immigration judge’s

adverse credibility finding. Specifically, he argued that his untruthfulness at the credible fear

interview was wrongfully considered because it did not touch on or enhance his actual application

for asylum, that his demeanor might have appeared varied during the hearing because of translation

errors, and that he had presented evidence to corroborate his claim that he is a practicing Christian

as well as adequately explained the inconsistency between his testimony and the minister’s letter and

the omission of his 1998 detention in China from his application. He argued, as well, that the

immigration judge wrongly denied his application for protection under the Convention Against

Torture because the Department of State Report for China, submitted to the court, showed that

Petitioner would more likely than not be tortured upon returning to China. He argued that he was

denied due process by virtue of the Cleveland Immigration Court’s delayed opening, which

Petitioner claimed “may have been the reason” that his application was untimely. He also claimed

that there was evidence available (the overnight mailing receipt) to demonstrate that an application

                                                   6
was timely mailed, and that his counsel failed to provide the receipt earlier because he did not know

that the application had not been received.

       The BIA issued its decision, dismissing Petitioner’s appeal, on November 20, 2009. This

appeal followed.

II.    Jurisdiction

       As a general matter, we have jurisdiction to review the BIA’s decision, a final agency

decision under 8 C.F.R. § 1241.1, with respect to Petitioner’s application for asylum, withholding

of removal, and withholding of removal under the Convention Against Torture pursuant to 8 U.S.C.

§ 1252(a)(1). Thus, Petitioner’s appeal is, as a general matter, properly before this Court, and we

will consider his arguments that the immigration judge’s credibility determination was not supported

by substantial evidence in the record.

       We lack jurisdiction, however, to review a determination that an asylum application was

untimely where an appeal seeks review of discretionary or factual questions, while we may consider

the issue of timeliness where constitutional claims or matters of statutory construction are raised.

See 8 U.S.C. § 1158(a)(2)(B), (a)(3); Almuhtaseb v. Gonzales, 453 F.3d 743, 748 (6th Cir. 2006).

Petitioner argues that he was denied procedural due process with respect to the decision on the

timeliness of his asylum application because he “could not file [his] application in court in a timely

manner.” To prevail on a due-process challenge, Petitioner must demonstrate that “the proceeding

was so fundamentally unfair” that he was “prevented from reasonably presenting his case.” Hassan

v. Gonzales, 403 F.3d 429, 436 (6th Cir. 2005) (internal quotation marks omitted). He must also

demonstrate “that the alleged violation affected the outcome of the proceedings; we will not simply

presume prejudice.” Gishta v. Gonzales, 404 F.3d 972, 979 (6th Cir. 2005). Petitioner has not

asserted that he was actually denied a full and fair hearing on the issue of the timeliness of his

application or even the merits of his application, for that matter. In fact, the immigration judge fully

                                                   7
articulated the basis for his decision that Petitioner’s asylum application was untimely and then

stated, in detail, alternative grounds for denying his asylum application. As the immigration judge

explained, Petitioner’s “application for asylum would be denied even if it had been timely filed.”

Petitioner has not demonstrated prejudice, so we will consider Petitioner’s argument concerning the

timeliness of his application no further.

       Further, we may only review those issues that Petitioner has exhausted through the

administrative remedies available to him. 8 U.S.C. § 1252(d)(1); Ramani v. Ashcroft, 378 F.3d 554,

558 (6th Cir. 2004). Thus, we have no jurisdiction to consider issues that were not presented to the

BIA, including Petitioner’s contention that the immigration judge erred when he failed to take into

account letters written by Petitioner’s father and uncle which he offers to support the contention that

he was an active practitioner of the Christian faith. Nor do we have jurisdiction to consider

Petitioner’s claim that incompetent translation during the proceeding before the immigration judge

deprived him of due process. While “[t]he function of an interpreter is an important one . . .

affect[ing] a constitutional right,” Gonzales v. Zurbrick, 45 F.2d 934, 937 (6th Cir. 1930), “an alien

must demonstrate that a constitutional error caused actual prejudice; i.e., that the error materially

affected the outcome of the alien’s case.” Al-Ghorbani v. Holder, 585 F.3d 980, 992 (6th Cir. 2009)

(citing Mapouya v. Gonzales, 487 F.3d 396, 416 (6th Cir. 2007)). Before the BIA, Petitioner raised

only a “generalized” claim that translation problems may have contributed to the immigration

judge’s adverse credibility finding without identifying how he was prejudiced by any discrete

instances of inadequate translation. Since Petitioner did not properly present and exhaust this issue

before the BIA, we have no jurisdiction to consider the issue.

       Finally, “[w]here, as here, the [BIA] adopts and affirms the immigration judge's opinion, but

writes its own opinion explaining the reasons for its decision, we review both opinions.” Abdulahad

v. Holder, 581 F.3d 290, 294 (6th Cir. 2009) (citing Zoarab v. Mukasey, 524 F.3d 777, 780 (6th Cir.

                                                  8
2008)); see also Ceraj v. Mukasey, 511 F.3d 583, 588 (6th Cir. 2007) (citing Gilaj v. Gonzales, 408

F.3d 275, 283 (6th Cir. 2005)) ("Because the BIA adopted the [immigration judge]'s decision with

additional commentary, we review the decision of the [immigration judge], as supplemented by the

BIA, as the final administrative order."). Respondent argues we may not reach the issue of whether

the immigration judge erroneously relied on Petitioner’s demeanor to reach an adverse credibility

determination because the BIA failed to expressly address it. This argument lacks merit because we

review both decisions.

III.   Standard of Review

       The agency decision must be upheld if it is supported by substantial evidence in the record.

INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992); Yu v. Ashcroft, 364 F.3d 700, 702-703 (6th Cir.

2004). Administrative findings of fact are conclusive unless “any reasonable adjudicator would be

compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). “This is a deferential standard:

A reviewing court should not reverse ‘simply because it is convinced that it would have decided the

case differently.’” Sylla v. INS, 388 F.3d 924, 925 (6th Cir. 2004) (quoting Klawitter v. INS, 970

F.2d 149, 151-52 (6th Cir. 1992)). The mere “possibility of drawing two inconsistent conclusions

from the evidence does not prevent an administrative agency’s finding from being supported by

substantial evidence.” Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 620 (1996) (citing

NLRB v. Nevada Consol. Copper Corp. 316 U.S. 105, 106 (1942); Keele Hair & Scalp Specialists,

Inc. v. FTC, 275 F.2d 18, 21 (5th Cir. 1960)).

       We review claims of the denial of due process de novo. Mikhailevitch v. INS, 146 F.3d 384,

391 (6th Cir. 1998) (citing Ivezaj v. INS, 84 F.3d 215, 220 (1996)).

IV.    Discussion

       Petitioner argues that the immigration judge erred in denying his applications for asylum,

withholding of removal, and protection under the Convention Against Torture and that, in turn, the

                                                 9
BIA erred in dismissing his appeal of that decision. Specifically, he maintains that the immigration

judge’s determination that Petitioner was not credible and, thus, that his claims were not credible was

not supported by substantial evidence. Further, he argues that he was denied due process, i.e., a full

and fair hearing, on his application for withholding of removal under the Convention Against Torture

because the immigration judge failed to address the International Religious Freedom Report for

China. For the reasons which follow, we find that Petitioner’s arguments are without merit and will

affirm the decision of the BIA.

        A.      Credibility Determination by Immigration Judge

        The decision by the immigration judge to deny Petitioner’s applications was driven by the

conclusion that Petitioner was not a credible witness. In all cases where asylum, withholding of

removal, or protection under the Convention Against Torture are requested, credibility

determinations are critical because aliens must carry the burden of proving their eligibility for relief.

        To qualify for a discretionary grant of asylum, an alien must demonstrate that he is a refugee

within the meaning of 8 U.S.C. § 1101(a)(42)(A). 8 U.S.C. § 1158(b)(1)(A). A “refugee” is an alien

who is unwilling or unable to return to his or her home country “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.” 8 U.S.C. § 1101(a)(42)(A). The alien has the burden of proving

eligibility for asylum. 8 U.S.C. § 1158(b)(1)(B)(i); 8 C.F.R. § 1208.13(a); Ndrecaj v. Mukasey, 522

F.3d 667, 674 (6th Cir. 2008). The applicant’s testimony may be sufficient to sustain his burden

without corroboration, but only if he satisfies the trier of fact that his testimony is credible,

persuasive, and refers to specific facts sufficient to demonstrate that he is a refugee. 8 U.S.C. §

1158(b)(1)(B)(ii).

        Withholding of removal, under 8 U.S.C. § 1231(b)(3), is closely related to, but distinct from,

asylum. See Singh v. Ashcroft, 398 F.3d 396, 401 (6th Cir. 2005). To prevail on a withholding

                                                   10
application, an alien must establish a “clear probability” that his life or freedom would be threatened

in the proposed country of removal because of one of the protected grounds. Pilica v. Ashcroft, 388

F.3d 941, 951 (6th Cir. 2004) (citing INS v. Stevic, 467 U.S. 407, 413 (1984); Mikhailevitch, 146

F.3d at 391). “Clear probability” means that it is “more likely than not” that an alien would be

subject to persecution, and the standard is, thus, more stringent than the burden of proof standard

applied in asylum cases. See INS v. Cardoza-Fonseca, 480 U.S. 421, 430-32 (1987).

       Finally, to establish eligibility for protection under the Convention Against Torture, an alien

must demonstrate that it is “more likely than not that he or she would be tortured if removed to the

proposed country of removal.” 8 C.F.R. § 1208.16(c)(2); Ramaj v. Gonzales, 466 F.3d 520, 532 (6th

Cir. 2006). “The term ‘torture’ only describes ‘an extreme form of cruel and inhuman treatment and

does not include lesser forms of cruel, inhuman or degrading treatment or punishment that do not

amount to torture.’” Almuhtaseb, 453 F.3d at 751 (quoting 8 C.F.R. § 1208.18(a)(2)); see also Berri

v. Gonzales, 468 F.3d 390, 398 (6th Cir. 2006). The torture must be “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.” 8 C.F.R. § 1208.18(a)(1).

       Credibility determinations are considered findings of fact and are reviewed under the

deferential substantial evidence standard. Yu, 364 F.3d at 703. We may not disturb an adverse

credibility determination unless the evidence “not only supports a contrary conclusion, but indeed

compels it.” Klawitter, 970 F.2d at 152 (emphasis in original).

       In determining whether an alien’s claim is credible, an Immigration judge is authorized to

consider a number of factors, including:

       the demeanor . . . of the applicant or witness, . . . 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

                                                  11
        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) (emphasis added). “There is no presumption of credibility. . . . ” Id.

        In the instant matter, the immigration judge concluded that Petitioner was not a credible

witness because of his demeanor, because he had demonstrated a willingness to lie under oath during

his credible fear interview, because of inconsistencies between Petitioner’s testimony and a letter

from the minister from Petitioner’s church concerning when Petitioner began to attend services there

and which services he attended, and because Petitioner failed to mention a purported two month

detention by the Chinese authorities on account of his prior religious affiliation (Taoist) some years

before in his applications, revealing it only during the hearing before the immigration judge. Once

the immigration judge concluded that Petitioner was “not a believable witness” and because

Petitioner was the only witness, the immigration judge found that there was simply no believable

evidence presented to demonstrate that Petitioner was a practicing Christian of long or short-

standing, that he had experienced past persecution or had a well-founded fear of future persecution

on account of his religion at the hands of Chinese authorities, or that he would more likely than not

be subjected to torture if he returned to the People’s Republic of China. [AR at 55, 58.] Thus, the

immigration judge concluded Petitioner’s application would have been denied even if it had been

timely filed.

        Petitioner first argues that the immigration judge erroneously concluded that Petitioner was

not credible because the immigration judge should never have considered Petitioner’s falsehoods

during the credible fear interview, the inconsistencies between his testimony and the minister’s letter,

and his omission from his applications of the purported detention by Chinese authorities because

they did not enhance his claim of persecution, i.e., did not “get to the heart of the applicant’s claims.”

The “heart of the claim” rule, which Petitioner invokes, citing Chen v. Gonzales, 447 F.3d 468, 472

                                                   12
(6th Cir. 2006) (addressing applications for asylum and withholding of removal filed prior to May

11, 2005), was abolished by statute for cases like Petitioner’s which were filed on or after May 11,

2005. See 8 U.S.C. § 1158(b)(1)(B)(iii). See also El-Moussa v. Holder, 569 F.3d 250, 256 (6th Cir.

2009) (recognizing that REAL ID Act abrogated “heart of the claim” doctrine for cases filed on or

after May 11, 2005, and made other significant changes to the Court’s review of adverse credibility

findings). Because the immigration judge was clearly authorized, under 8 U.S.C. 1158(b)(1)(B)(iii),

to consider these falsehoods, inconsistencies, and omissions in reaching a finding on credibility, it

was not error for him to do so simply because these falsehoods, inconsistencies, and omissions may

not have gone directly to the basis of Petitioner’s application for asylum, withholding of removal,

and protection from torture.

       Even so, Petitioner argues that the immigration judge miscontrued the import of his falsehood

and his omission in his application and that the immigration judge’s conclusion that there was an

inconsistency was not supported by substantial evidence. Effectively, he argues that it was

reasonable for him to spin the elaborate tale about the practice of Falun Gong that he told during his

credible fear interview because the “snakehead,” or human smuggler, told him to do so and that it

was reasonable for him to omit past persecution as a Taoist because he was now requesting relief as

a Christian. He argues, as well, that his statements about when he began to attend church in New

York prior to registering with the church were not inconsistent with the letter obtained from the

minister there which gave a much later date “according to [the] church registration book” and that

any discrepancy based on which day of the week he attended church was minor. We have considered

these arguments but cannot say that the evidence “not only supports a contrary conclusion, but

indeed compels it.” Klawitter, 970 F.2d at 152 (emphasis in original).

       Finally, Petitioner argues that the immigration judge erroneously relied on Petitioner’s

demeanor to reach an adverse credibility determination because the immigration judge failed to

                                                 13
articulate specific examples of Petitioner’s demeanor in announcing a decision. While the

immigration judge questioned the credibility of the Petitioner for a number of reasons, the

immigration judge included Petitioner’s “demeanor as he testified” because “[h]is demeanor on

direct examination was much different than that on cross-examination” without further elaboration.

[AR at 54.] On review, the BIA rejected Petitioner’s contention that he was a credible witness and

concluded that the immigration judge had not clearly erred with respect to his assessment of

Petitioner’s credibility. The BIA’s decision was, however, founded on the other factors relied upon

by the immigration judge, i.e., prior falsehoods, inconsistencies between Petitioner’s testimony and

other evidence, including his changing testimony during the hearing, as well as the omission of the

purported prior detention in his homeland from his application. The BIA omitted any discussion of

Petitioner’s demeanor. While an immigration judge is required to give specific reasons for any

adverse credibility determination, Abdulahad, 581 F.3d at 294-95 (citing Koulibaly v. Mukasey, 541

F.3d 613, 620 (6th Cir. 2008)), we find ourselves in agreement with the BIA that the immigration

judge’s adverse credibility determination was supported by substantial evidence even when

consideration of Petitioner’s demeanor is omitted from the calculus of credibility.

       In this respect, the matter at hand is easily distinguishable from that before the Ninth Circuit

Court of Appeals in Arulampalam v. Ashcroft, 353 F.3d 679 (9th Cir. 2003), upon which Petitioner

relies to support his position. In Arulampalam, the immigration judge made an adverse credibility

determination based largely on “aspects of [the petitioner's] demeanor and method of answering

questions” despite having found “no major inconsistencies in [the petitioner's] testimony” and

without specifically or cogently referring to any specific aspect of the petitioner’s demeanor. Id. at

685-86. By contrast, both the immigration judge and the BIA focused their attention in this matter

on Petitioner’s prior untruthfulness, inconsistencies between Petitioner’s testimony and other

evidence presented, as well as the failure to mention a prior detention by the Chinese authorities on

                                                 14
his applications. It may have been error for the immigration judge to rely on Petitioner’s demeanor,

as that term is typically understood, as a basis for an adverse credibility determination without

articulating his specific concerns about it. Nonetheless, we cannot say that the adverse credibility

determination was not supported by substantial evidence in the record, nor can we say that a contrary

conclusion would be compelled if Petitioner’s demeanor is not considered.

          Accordingly, for all of the reasons above, the adverse credibility determination below is

upheld.

          B.     No Denial of Due Process

          Finally, Petitioner argues that he was denied due process because “[t]he Immigration Judge

did not take into separate consideration the Petitioner’s claim under the Convention Against

Torture.” Petitioner states that the International Religious Freedom Report for China “clearly shows

there is torture of Christian religious adherents in China.” That may be so. But the immigration

judge did not believe that Petitioner was a practicing Christian. We have affirmed the immigration

judge’s adverse credibility finding, and, after reviewing the record, we are not compelled to conclude

that Petitioner is a practicing Christian or that he will likely be subject to torture if he is returned to

China. Accordingly, we deny his petition for relief on these grounds, as well.

V.        CONCLUSION

          For all of the reasons set forth above, we DENY the relief requested in the Petition.




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