     Case: 11-60505     Document: 00511844663         Page: 1     Date Filed: 05/04/2012




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

                                                                            FILED
                                                                            May 4, 2012
                                     No. 11-60505
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

ZEN YAO LIN, also known as Zhen Yao 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. A087 357 089


Before SMITH, BARKSDALE, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Zen Yao Lin petitions for review of the Board of Immigration Appeals’
(BIA) dismissing: his appeal from the Immigration Judge’s (IJ) denying his
applications for asylum, withholding of removal, and relief under the Convention
Against Torture (CAT); and, his motion to remand (construed as a motion to
reopen) his administrative proceeding for consideration of a new application
based on facts arising after the IJ’s decision.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 11-60505   Document: 00511844663     Page: 2   Date Filed: 05/04/2012

                                 No. 11-60505

      Lin’s initial application alleged attempts by Chinese authorities to apply
coercive population-control policies to him and his wife, to whom he was not then
married when family-planning officials attempted to coerce her into having an
abortion. The IJ’s denying relief was based largely on its finding Lin not
credible, which finding the BIA adopted. Both the IJ and BIA decisions are
subject to review. E.g., Zhu v. Gonzales, 493 F.3d 588, 593 (5th Cir. 2007).
      Lin contends the BIA erred by affirming the IJ’s determination that he
was not credible. He maintains: inconsistencies in his accounts are minor and
do not go to the heart of his claims; and the IJ’s finding that his demeanor
rendered him non-credible is unsupported by the record.
      An immigration court’s legal conclusions are reviewed de novo; its findings
of fact, for substantial evidentiary support. E.g., Zhu, 493 F.3d at 594. Among
those findings is an immigration court’s determination that an applicant is not
credible. E.g., Chun v. INS, 40 F.3d 76, 78 (5th Cir. 1994). Our court will defer
to an immigration court’s credibility determination “unless, from the totality of
the circumstances, it is plain that no reasonable fact-finder could make such an
adverse credibility ruling”. Wang v. Holder, 569 F.3d 531, 538 (5th Cir. 2009)
(internal quotation marks omitted).
      Lin stated in his application that he left China on 2 September 2007 and
entered the United States from Mexico. He testified at the merits hearing that
he left his hometown on 2 September, made his way to Hong Kong, and then left
China on 10 September. He further testified that he entered the United States
from Canada aboard a freight train on 15 September. (The Notice to Appear
alleged Lin entered the United States at Buffalo, New York, on 15 September.)
      In the application, Lin stated that his wife was taken for a coerced
abortion in September 2004, but at the hearing he testified that this episode
occurred in October 2004. He testified that he was present and that he was
beaten and warned by family-planning officials.



                                       2
   Case: 11-60505    Document: 00511844663      Page: 3    Date Filed: 05/04/2012

                                  No. 11-60505

      Lin also stated in the application that he left his home after the
authorities threatened to “confiscate” it. At the hearing, he testified that the
authorities “tore” the home, suggesting a physical act against the property
beyond a mere threat.
      Lin alleged both he and his wife were targeted for compulsory sterilization,
yet his wife remained unmolested after he left China. He testified that he spoke
with his wife every day, yet he did not know her address. He also testified that
he was unsure about when in 2006 his wife became pregnant for a second time,
as he was escaping at the time.
      This evidence does not compel a conclusion that no reasonable factfinder
could have found Lin non-credible. E.g., Wang, 569 F.3d at 538. Moreover, it is
irrelevant whether the credibility determination went to the heart of Lin’s
claims. 8 U.S.C. § 1158(b)(1)(B)(iii) (factors trier of fact may consider). And, the
IJ’s finding that Lin was occasionally vague and evasive is supported by
substantial evidence. E.g., Wang, 569 F.3d at 539-40.
      Lin’s motion for remand was based largely on his Falun Gong practice and
activities (begun after denial of his initial application), but he also presented
evidence relevant to his claim based on Chinese population-control policies.
Denial of that motion is reviewed for abuse of discretion. E.g., Gomez-Palacios
v. Holder, 560 F.3d 354, 358 (5th Cir. 2009).
      Lin contends the BIA abused its discretion by: relying, for purposes of the
Falun Gong claim, on the IJ’s credibility determination as to the population-
control claim; rejecting as unauthenticated a letter purportedly from a Chinese
village government; relying on the silence of the State Department’s profile as
to the Chinese government’s pursuit of Falun Gong practitioners in the United
States; and rejecting the letters from his father and wife, as those could not have
been presented to the IJ because they addressed his Falun Gong practice.
      With the exception of his contention about his family’s letters, Lin did not
raise any of these contentions in his motion for remand. Nor did he file a motion

                                         3
   Case: 11-60505   Document: 00511844663     Page: 4   Date Filed: 05/04/2012

                                 No. 11-60505

for reconsideration of the BIA’s decision.    Thus, he has failed to exhaust
administrative remedies as to those contentions, and our court lacks jurisdiction
to consider them. E.g., Omari v. Holder, 562 F.3d 314, 320 (5th Cir. 2009).
      As for Lin’s contention that the letters from his father and wife were
unavailable at the time of the IJ hearing, the BIA determined that Lin failed to
demonstrate that, to the extent they addressed China’s coercive population-
control policies, he could not have obtained them earlier. With respect to the
letters regarding Lin’s involvement in Falun Gong, the BIA determined that
they were entitled to little weight because the father and wife were interested
witnesses who were not subject to cross-examination. Lin failed to brief those
issues and, consequently, has waived them. Fed. R. App. P. 28(a)(9)(A).
      DENIED IN PART; DISMISSED IN PART.




                                       4
