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

                                                 FILED
                                                                        September 30, 2009

                                     No. 08-61104                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



DONG LIN

                                                   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. A94-798-532


Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Dong Lin, a native and citizen of China, has filed a petition for review of
the Board of Immigration Appeals (“BIA”) decision affirming an immigration
judge’s (IJ) decision to deny his application for asylum, withholding of removal,
and relief under the Convention Against Torture (“CAT”). For the reasons
explained herein, this petition is DENIED.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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                                   BACKGROUND
      In August 2006, Immigration and Customs Enforcement (“ICE”) 1 issued
a Notice to Appear alleging that Dong Lin was a native of China, that he entered
the United States in June 1999 with the intent to stay, and that he did not then,
and does not now, possess valid entry documents. Thus, the Notice to Appear
charged that Lin was subject to removal as an alien illegally present in the
United States. Prior to a hearing, Lin conceded all allegations in the Notice to
Appear and requested withholding of removal or asylum on the basis of religious
persecution. Specifically, Lin claimed that he was persecuted in China because
of his membership in an “underground” Christian church not approved by the
government, and that he would likely be persecuted in the future if he were
removed to China.
      A hearing was held before an IJ on July 17, 2006, in which Lin testified
that he first came into contact with Christianity in 1997 when he joined a non-
government-sanctioned church in China. In 1998, police raided the church while
Lin was attending a meeting. Lin claimed that he was hit with a police baton
and that he scraped his leg when a police officer pulled him through a window.
After the raid, Lin testified that he and approximately seventeen other
congregants were taken to jail. Lin claimed that, while in jail, he was slapped,
made to squat until his legs went numb, had water poured on his head, and had
a hot lightbulb put close to his head. He also testified that he was forced to sit
in a broken chair and was told that he would be beaten if he fell. When he did
fall, Lin testified that his interrogators brutally kicked him. Lin claimed he was

      1
        The enforcement functions of the Immigration and Naturalization Service (INS) were
transferred to ICE within the Department of Homeland Security in March 2003. 6 U.S.C. §
251. However, the Notice to Appear in the instant case was issued on INS forms.

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interrogated and kept in a cell with no lights for two days. On the third day he
was released after his father paid 5,000 RMB to a Mr. Wong who worked for the
Public Security Bureau.    Lin testified that he later learned some of the other
congregants detained during the raid were sentenced and put in jail.
      Lin testified that following his release from jail, he no longer attended
church. However, he claimed police officers continually came to his parent’s
house to question them about his involvement in the underground church and
to accuse Lin of being counterrevolutionary. Lin testified that he and his father
were concerned for Lin’s well-being and his future in China, so his father
arranged for a snakehead to smuggle Lin into the United States. He arrived in
San Francisco in June of 1999.
      On September 28, 2007, the IJ issued an opinion in which he concluded
that Lin’s testimony lacked credibility, because his actions upon arriving in the
United States were “entirely inconsistent” with his claim that he left China as
a result of religious persecution. In particular, the IJ noted:
      [Lin] came to the United States in June of 1999 and simply put his
      religious activity on hold for period of more than four years. The
      Court believes that what actually motivated respondent to come to
      the United States was what he and his father said, and that is that
      he had concluded he “had no future in China.” Respondent’s
      testimony establishes that the first thing on his mind upon arrival
      in the United States was finding employment and being able to have
      three meals a day. While that is certainly understandable and it is
      [–] certainly should be, perhaps [—] a human’s first order of priority,
      if the person is fleeing religious persecution and that persecution
      and that fear are so strong to cause that person to move 8,000 miles
      away from home and leave family, friends, and everyone that he
      knows, the Court would expect him to resume his religious activities
      within a reasonable period of time after getting free from the
      religious interference.


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      The IJ also found the following additional reasons as being supportive of
his adverse credibility finding: (1) Lin did not attend church locally or in other
areas of China in the year between the police raid and his entrance into the
United States; (2) Lin claimed he preferred the underground church because the
government-sanctioned church did not permit congregants to testify or give
witness.     However, there was no evidence that Lin ever engaged in either
activity in China or the United States; and (3) Lin had not baptized his young
daughter because he intended to permit her to choose her own religion, which,
as the IJ noted, is “pretty significantly at variance with Christian religious
doctrine.”
      Based on his finding that Lin’s testimony was not credible, the IJ
concluded that Lin failed to establish that it is more likely than not that he
would be persecuted because of his religion if he were removed to China.
Therefore, his application for withholding of removal was denied. In addition,
the IJ concluded that Lin had not demonstrated that it is more likely than not
that he would be subject to torture if removed to China. Accordingly, Lin’s
application for relief under CAT was also denied. His application for asylum was
denied as time barred.
      On appeal, the BIA found no clear error in the IJ’s adverse credibility
findings. It concluded that the IJ properly determined that Lin failed to meet
the burden of proof for withholding of removal. In addition, the BIA agreed with
the IJ that Lin failed to demonstrate that he was entitled to relief under CAT.
Accordingly, Lin’s appeal to the BIA was dismissed.
      Lin has now filed an appeal in this court challenging the IJ’s and BIA’s
determination that he is not entitled to withholding of removal or relief under


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CAT. Lin contends that he credibly established his entitlement to such relief,
and that the adverse credibility assessments made by the IJ are not
substantially supported by the record.2
                             STANDARD OF REVIEW
      Because the BIA adopted and affirmed the IJ’s decision based upon the
reason set forth therein, we have authority to review the IJ’s decision on appeal.
See Wang v. Holder, 569 F.3d 531, 536 (5th Cir. 2009). We use the substantial
evidence standard to review an IJ’s factual conclusion that an alien is not
eligible for withholding of removal or relief under CAT. Zhang v. Gonzales, 432
F.3d 339, 344 (5th Cir. 2005) (citations omitted). Reversal under this standard
is improper unless evidence in the record not only supports a contrary
conclusion, but also compels such a conclusion. Id. (citations omitted); see 8
U.S.C. § 1252(b)(4)(B).        While it is the IJ’s duty to make credibility
determinations, “an adverse credibility determination must be supported by
specific and cogent reasons derived from the record.” Zhang, 432 F.3d at 344
(citations omitted).
                                    DISCUSSION
A.    Adverse Credibility Findings
      Lin contends the IJ’s adverse credibility findings were arbitrary,
capricious, and constitute an abuse of discretion. He notes that during his
testimony he gave a valid explanation for why he did not participate in religious
activities during the four years following his arrival in the United States, i.e., his
needs dictated that he find employment and a secure way of maintaining a living

      2
         By not challenging that his asylum application was time barred, Lin has abandoned
this challenge. See Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003); Brinkmann v.
Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).

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first. However, the IJ’s opinion shows that he considered this explanation, yet
still determined that Lin’s claim that he left China due to religious persecution
was not credible.
      It may be more likely that a fact-finder would find Lin’s claim of past
religious persecution more credible if the explanation for his four-year hiatus
from religious activities were believed. However, we find that the evidence on
the whole would still not compel a reasonable fact-finder to find that Lin met his
burden to establish that it is more likely than not that he would be persecuted
because of his religion if he were removed to China. In addition, the IJ’s opinion
provides specific and cogent reasons for his adverse credibility finding.
Therefore, we conclude that these findings are supported by substantial
evidence.
B.    Relief Under CAT
      Lin also asserts that the IJ erred in determining that his interrogation,
and the future threat thereof, did not amount to torture. For the purposes of
CAT, torture is defined as
      any act by which severe pain or suffering, whether physical or
      mental, is intentionally inflicted on a person for such purposes as
      obtaining from him or her a third person information or a
      confession, punishing him or her for an act he or she or a third
      person has committed or is suspected of having committed, or
      intimidating or coercing him or her or a third person, or for any
      reason based on discrimination of any kind, when such pain or
      suffering is 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. § 208.18(a)(1). If an applicant’s testimony is credible, it alone may be
sufficient to sustain the applicant’s burden that it is more likely than not that


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he would be tortured if removed to the proposed country of removal. 8 C.F.R. §
208.18(c)(2); Efe v. Ashcroft, 293 F.3d 899, 907 (5th Cir. 2002).
      We need not determine whether the harm Lin claims to have suffered at
the hands of his interrogators rises to the level of torture, because we have
already determined that the IJ’s adverse credibility findings were based on
substantial evidence.    Since the IJ found Lin’s testimony not credible, we
conclude the IJ was correct in determining that he failed to establish his
eligibility for relief under CAT.
                                    CONCLUSION
      Substantial evidence supports the BIA’s determination that Lin failed to
establish his eligibility for withholding of removal or the CAT relief. See 8
U.S.C. § 1231(b)(3); Efe, 293 F.3d at 906-07; Girma v. INS, 283 F.3d 664, 666-67
(5th Cir. 2002). Therefore, Lin’s petition for review is DENIED.




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