     Case: 11-60570     Document: 00511918473         Page: 1     Date Filed: 07/12/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                            July 12, 2012
                                     No. 11-60570
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

ZHEN YUAN,

                                                  Petitioner

v.

ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,

                                                  Respondent


                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                BIA No. A087 346 926


Before BARKSDALE, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
        Zhen Yuan challenges the denial of relief by the Board of Immigration
Appeals (BIA). A native and citizen of China, she applied for asylum,
withholding of removal, and relief under the Convention Against Torture (CAT).
In doing so, she asserted that Chinese family-planning authorities discovered
her underage pregnancy, abducted her, forced her to undergo a medical exam,
scheduled a forced abortion, confined her, and beat her in such a way that
caused movement in the fetus’ position. (The child was later born in the United

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-60570

States.) Yuan’s written statement and oral testimony contained inconsistences
concerning the stage of her pregnancy during relevant events and concerning
whether she was confined to a cell under a mountain or in a small house.
Additionally, her statements contained inconsistencies concerning who advised
her to come to the United States, facilitated contact with a smuggler, and gave
her a Canadian passport. She also submitted forged notarial certificates to
authenticate the documents that purportedly proved her story.
      The immigration judge (IJ): denied withholding of removal, after finding
Yuan was not credible; denied asylum, on the ground that Yuan’s application
was time-barred; and denied relief under the CAT, because Yuan failed to show
it was more likely than not that she would be tortured if she returned to China.
The BIA affirmed the credibility finding and the denial of relief.
      Yuan does not adequately address either the BIA’s determination that her
asylum application was time-barred, or the finding that she was not likely to be
tortured upon her return to China. Therfore, she has abandoned her asylum and
CAT claims. E.g., Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003);
Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
1987). Accordingly, only the withholding-of-removal claim remains.
      Our court may review the BIA’s decision, but not the IJ’s. Chun v. INS,
40 F.3d 76, 78 (5th Cir. 1994). Where, as here, however, the IJ’s findings
affected the BIA’s decision, the IJ’s findings are also reviewable. Id. Factual
findings are reviewed for substantial evidence, and our court will not reverse
such a finding unless the evidence compels it. Id. “The alien must show that the
evidence was so compelling that no reasonable factfinder could conclude against
it.” Wang v. Holder, 569 F.3d 531, 537 (5th Cir. 2009).
      To obtain withholding of removal, an applicant must show a clear
probability that she will be persecuted upon return to her home country. Roy v.
Ashcroft, 389 F.3d 132, 138 (5th Cir. 2004). Under the REAL ID Act, the
applicant’s testimony, by itself, may be sufficient to sustain the burden of

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                                   No. 11-60570

proving eligibility for relief, “but only if the applicant satisfies the trier of fact
that [her] testimony is credible, is persuasive, and refers to specific facts
sufficient to demonstrate” that she is entitled to relief. 8 U.S.C.
§ 1158(b)(1)(B)(ii); see also id. § 1231(b)(3)(C).
      In challenging the IJ’s adverse credibility finding, Yuan asserts for the
first time that certain inconsistencies between her written statement and her
testimony resulted from an erroneous translation of the written statement. Of
course, our court lacks jurisdiction to consider issues not raised before the BIA.
8 U.S.C. § 1252(d)(1); Claudio v. Holder, 601 F.3d 316, 318 (5th Cir. 2010).
      Additionally, Yuan contends the discrepancies between her written and
oral statements concerning the stage of her pregnancy during relevant events
were insignificant.     The IJ was required to consider the totality of the
circumstances in making the credibility determination, including “the
consistency between the applicant’s . . . written and oral statements . . . , without
regard to whether an inconsistency . . . goes to the heart of the applicant’s
claim”.   8 U.S.C. § 1158(b)(1)(B)(iii).      Accordingly, the IJ appropriately
considered the discrepancies. See id.; Wang, 569 F.3d at 538-39.
      Yuan also contends it was improper for the IJ to make an adverse
credibility determination based on her submission of fraudulent notarial
certificates because the record does not show that she had reason to know the
documents were forgeries. Yuan admitted that she knew her father obtained the
certificates when government offices were closed for the Chinese New Year and
that her father paid an exorbitant sum for them. The Second Circuit cases she
cites are inapposite, as the IJ did not make the adverse credibility determination
based solely on the fraudulent documents, and the IJ found that Yuan had
reason to believe the documents were falsified.
      In the light of the inconsistencies in Yuan’s statements and the fraudulent
documents she submitted, Yuan fails to demonstrate that “it is plain that no
reasonable fact-finder could make . . . an adverse credibility ruling”. Wang, 569

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                                   No. 11-60570

F.3d at 538 (internal quotation marks omitted); see also 8 U.S.C.
§ 1158(b)(1)(B)(iii).     Accordingly, the adverse credibility determination is
supported by substantial evidence. See Wang, 569 F.3d at 538, 540.
      Next, Yuan notes that she has not had an opportunity to testify about her
fear of future persecution due to having two children born in the United States
(one of which was born after her testimony before the IJ).          “Due process
challenges to deportation proceedings require an initial showing of substantial
prejudice.” Bolvito v. Mukasey, 527 F.3d 428, 438 (5th Cir. 2008) (internal
quotation marks omitted). Because Yuan fails to explain how the additional
testimony would have altered the adverse credibility determination or otherwise
show that it would have affected the outcome of the proceeding, her contention
lacks merit. See id.
      DENIED.




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