Li Bin Cao-Yi vs. U.S. Attorney General

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
FEB 25, 2010
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 09-12328
Non-Argument Calendar
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Agency No. A099-538-760
LI BIN CAO-YI,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(February 25, 2010)
Before CARNES, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:
Lin Bin Cao, a native and citizen of the People’s Republic of China, seeks
review of the Board of Immigration Appeals’s (“BIA”) order dismissing his appeal
from the immigration judge’s (“IJ”) denial of his application for asylum and

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withholding of removal under the Immigration and Nationality Act (“INA”), 8
U.S.C. §§ 1158(a) and 1231(b)(3), and relief under the United Nations Convention
Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
(“CAT”), 8 C.F.R. § 208.16(c). On appeal, Cao argues that BIA erred in
upholding the IJ’s adverse credibility determination based on inconsistencies
between his testimony and the documentary evidence. Specifically, Cao contends
that the two inconsistencies cited by the BIA were not central to his claims for
relief and do not constitute specific, cogent reasons for discrediting his testimony.
In contrast, Cao maintains that he offered credible and consistent testimony
demonstrating that there is a clear probability that he will be persecuted and
subjected to harsh punishment on account of his Christian faith if removed to
China.
When the BIA issues a decision, we review only that decision, except to the
extent that the BIA expressly adopts the IJ’s opinion. Kueviakoe v. U.S. Att’y
Gen., 567 F.3d 1301, 1304 (11th Cir. 2009). Here, because the BIA issued its own
opinion without adoption, upholding the IJ’s adverse credibility determination, we
review only the BIA’s decision. See id.
Factual determinations, including credibility determinations, are reviewed
under the substantial evidence test, which requires us to affirm the BIA’s decision
if it is “supported by reasonable, substantial, and probative evidence on the record
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considered as a whole.” Forgue v. U.S. Att’y Gen., 401 F.3d 1281, 1286 (11th Cir.
2005) (quotation omitted). Under this “highly deferential” standard of review, an
administrative factual finding can be reversed only if the record “compels” a
contrary conclusion. Adefemi v. Ashcroft, 386 F.3d 1022, 1027-29 (11th Cir.
2004) (en banc).
An asylum applicant bears the burden of showing, with specific and credible
evidence, either past persecution or a well-founded fear of future persecution on
account of race, religion, nationality, membership in a particular social group, or
political opinion. Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286-87 (11th Cir.
2005). To qualify for withholding of removal under the INA, an alien must satisfy
the more stringent standard of demonstrating that it is “more likely than not that
[he] will be persecuted or tortured” upon return to his native country. Sepulveda v.
U.S. Att’y Gen., 401 F.3d 1226, 1232 (11th Cir. 2005). Likewise, CAT relief
demands a showing that it is more likely than not that an alien will be tortured in
his home country by or with the acquiescence of the government. Sanchez v. U.S.
Atty Gen., 392 F.3d 434, 438 (11th Cir. 2004). Moreover, if an applicant is unable
to meet the well-founded fear standard for asylum, “he necessarily fails to establish
eligibility for withholding of removal or protection under CAT.” Forgue, 401 F.3d
at 1288 n.4.
An adverse credibility determination alone may be sufficient to support a
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denial of asylum or withholding of removal, especially if the alien fails to produce
corroborating evidence. Kueviakoe, 567 F.3d at 1304-05. Pursuant to the REAL
ID Act of 2005, which applies to applications for asylum and withholding of
removal filed after May 11, 2005, a credibility determination may be based on any
inconsistencies, inaccuracies, or falsehoods, “without regard to whether an
inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim.”
8 U.S.C. § 1158(b)(1)(B)(iii); Kueviakoe, 567 F.3d at 1305. Once an adverse
credibility determination is made, the burden is on the applicant “to show that the
credibility decision was not supported by specific, cogent reasons or was not based
on substantial evidence.” Kueviakoe, 567 F.3d at 1305 (quotation omitted).
Because Cao’s testimony directly conflicted with two articles of
documentary evidence, substantial evidence supports the BIA’s adverse credibility
determination. Cao’s claims for relief hinged on the credibility of his testimony,
but the record neither supports nor compels the conclusion that Cao was persecuted
or possessed a well-founded fear of persecution on account of his religion. Cao
has thus failed to establish eligibility for asylum and, by extension, to satisfy the
more stringent burdens for withholding of removal and CAT relief. Upon review of
the record and consideration of the parties’ briefs, we deny Cao’s petition for
review.
DENIED.
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