                                                                     [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                      ELEVENTH CIRCUIT
                                                                         JULY 3, 2012
                                            No. 11-13560
                                        Non-Argument Calendar             JOHN LEY
                                                                           CLERK
                                      ________________________

                                           Agency No. A098-378-145




NODIRBEK NIGMATOVICH YUSUPOV,

llllllllllllllllllllllllllllllllllllllll                                       Petitioner,


                                                   versus

U.S. ATTORNEY GENERAL,

llllllllllllllllllllllllllllllllllllllll                                     Respondent.

                                     ________________________

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

                                                (July 3, 2012)

Before MARCUS, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:

      Nodirbek Yusupov, a citizen of Uzbekistan, petitions for review of the

Board of Immigration Appeals’s (“BIA”) affirmance of the Immigration Judge’s

(“IJ”) denial of his application for asylum, withholding of removal, and relief

under the United Nations Convention Against Torture (“CAT”). The IJ found

numerous inconsistencies between Yusupov’s testimony and his application, and

the IJ denied Yusupov’s application for asylum, withholding of removal, and CAT

relief, but did not make an express credibility finding. The BIA remanded the IJ’s

decision with the instruction that an express adverse credibility determination be

made. In a second decision, the IJ found that Yusupov was not credible and

denied his application. The BIA, in a separate opinion, concurred with the IJ after

identifying several contradictions that supported the adverse credibility finding. It

also determined that Yusupov’s documentary evidence was insufficient to

overcome his incredible testimony.

      Yusupov argues that substantial evidence did not support the BIA’s adverse

credibility determination because any inconsistencies were clarified in his

testimony and were unsubstantiated by the record. Yusupov also argues that the




                                          2
BIA erred by not assigning his second appeal to a three-member panel.1

                                                I.

       We review the BIA’s credibility findings under the “highly deferential”

substantial evidence test, which requires that we uphold the BIA’s decision if it is

“supported by reasonable, substantial, and probative evidence on the record

considered as a whole.” Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286 (11th

Cir. 2005).

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

adopts the IJ’s opinion or relies upon her reasoning. Najjar v. Ashcroft, 257 F.3d

1262, 1284 (11th Cir. 2001). Here, the BIA wrote a separate opinion that

concurred with the IJ’s opinion but did not directly rely upon it. Thus, we review

only the BIA’s decision.

       An applicant for asylum must establish either: (1) past persecution on

account of a protected ground, or (2) a well-founded fear of future persecution on

account of a protected ground. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226,

1230-31 (11th Cir. 2005). “If the IJ finds an asylum applicant not credible, the IJ

       1
                Yusupov also argues that the record presented to the BIA was not properly
translated, which precluded meaningful review. However, Yusupov did not to present his
translation claim to the BIA, thereby failing to exhaust his administrative remedies. Accordingly,
we lack jurisdiction to consider this claim. See Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d
1247, 1250 (11th Cir. 2006) (holding that we lack jurisdiction to consider claims not raised
before the BIA).

                                                3
must make an explicit adverse credibility finding and offer ‘specific, cogent

reasons’ for the finding.” Shkambi v. U.S. Att’y Gen., 584 F.3d 1041, 1049 (11th

Cir. 2009). “Indications of reliable testimony include consistency on direct

examination, consistency with the written application, and the absence of

embellishments.” Id. An adverse credibility determination also may be based on

inconsistencies between hearing testimony and statements made at prior

interviews, including credible-fear interviews with an asylum officer. See id.

      Once the IJ makes an adverse credibility finding, the alien bears the burden

to show that the finding was not supported by the reasons provided or was not

based on substantial evidence. Id. An alien who cannot meet the standard for

asylum cannot satisfy the higher standards for withholding of removal under the

INA or for CAT relief. Zheng v. U.S. Att’y Gen., 451 F.3d 1287, 1292 (11th Cir.

2006).

      There is substantial evidence to support the BIA’s decision. Yusupov was

unable to provide consistent testimony about whether the books in his house had

been planted by the government. This went to the heart of whether he had been

arrested merely for his Muslim faith—or because of his suspected involvement in

Hizb ut-Tahrir.

      Yusupov waited nine days to go to the hospital after his release from prison,

                                         4
which supports a finding that he did not suffer severe injuries during

imprisonment. He testified to the IJ that officials directed him to attend mosque as

part of his activities as an informant, yet his application for asylum stated that he

was told not to go to mosque. His testimony and application also conflicted with

respect to the details of his brothers’ arrests and whether they had been released.

       Yusupov was unable to provide any documentary evidence of his

hospitalization, his time as a muezzin, or his brothers’ arrests.

       Because substantial evidence supports the BIA’s conclusion that Yusupov is

ineligible for asylum on the basis of the adverse credibility determination and the

insufficiency of his corroborating evidence, Yusupov also cannot satisfy the

heightened burdens for withholding of removal under the INA or for CAT relief.

Zheng, 451 F.3d at 1292.2

                                              II.

       Yusupov also contends that the BIA erred by not assigning his second

appeal to a three-member panel. “A single Board member assigned under the case

management system shall determine the appeal on the merits . . . , unless the Board



       2
               We also reject Yusupov’s argument that the IJ erred by initially relying on pre-
REAL-ID-Act standards. The IJ’s written report clearly indicates that she realized that the REAL
ID Act did not apply to Yusupov’s case, and, in any event, Yusupov has failed to explain how he
was prejudiced by this alleged error.

                                               5
member determines that the case is appropriate for review and decision by a

three-member panel under the standards of paragraph (e)(6) of this section.” 8

C.F.R. § 1003.1(e)(3). Yusupov contends that this case fits under paragraph (e)(6)

because it involves the “need to review a clearly erroneous factual determination

by an immigration judge.” Id. § 1003.1(e)(6)(v).

       However, paragraph (e)(3) indicates that the decision to forward the case to

a three-member panel is to be made by the single Board member assigned the case.

Yusupov has not provided any authority for his contention that this Court has the

power to remand the case for it to be heard by a three-member panel.3

       DENIED IN PART AND DISMISSED IN PART.4




       3
               In any event, in light of the factual inconsistencies in Yusupov’s case, we discern
no abuse of discretion in the single Board member’s decision not to forward the case to a three-
member panel to resolve a “clearly erroneous factual determination.” See 8 C.F.R. §
1003.1(e)(6)(v).
       4
                Yusupov’s request for oral argument and his request for reconsideration of our
prior denial of his motion for a stay of removal are DENIED.

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