IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-60302

Summary Calendar

ZHIQIANG SHA,

Petitioner

v.

LORETTA LYNCH, U. S. ATTORNEY GENERAL,

Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A088 485 274

Before WIENER, HIGGINSON, and COSTA, Circuit Judges.

STEPHEN A. HIGGINSON, Circuit Judge:*

Zhiqiang Sha, a native and citizen of China, has filed a petition for 

review of the order of the Board of Immigration Appeals (BIA) affirming the 

denial of his application for asylum, withholding of removal, and protection 

under the Convention Against Torture (CAT). In seeking relief from removal, 

Sha claimed that he was arrested, detained, and beaten by Chinese police

because he participated in a protest in August 2007 concerning the loss of 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

June 28, 2016

Lyle W. Cayce

Clerk

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No. 15-60302

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money he invested in a fraudulent ant farm pyramid scheme perpetuated by 

the Yilishen Company. Sha asserted that he was released from police custody 

only when he needed medical treatment. The police required him to check in 

regularly, with the intention to imprison him when he was fully recovered.

In affirming the denial of asylum and withholding of removal, the BIA 

upheld the immigration judge’s finding that Sha was not a credible witness

and that he provided insufficient evidence corroborating his testimony. The 

BIA determined that the immigration judge did not clearly err in relying on 

significant inconsistencies between Sha’s testimony and his supporting 

documents and the implausibility of his timeline of events. Among other 

findings, the BIA noted that Sha’s testimony that he began losing money in 

2005 from his Yilishen investment and that he protested in August 2007 was 

inconsistent with the news articles in the record indicating that Yilishen did 

not stop making payments and protests did not begin until October 2007, after 

Sha had supposedly fled to a relative’s house in the countryside to escape the 

police. The BIA further determined that Sha failed to cogently challenge the 

denial of CAT relief, deeming the issue waived.

Sha contends that the adverse credibility determination was based on 

speculation and errors and that the BIA did not adequately consider his 

explanations for discrepancies and the absence of corroborating documentary 

evidence. Sha further contends that he was required to produce more 

documentary evidence than a normal asylum seeker can produce, that details 

omitted in a letter from his wife that was introduced into evidence did not go 

to the heart of his claims, and that he should not be held responsible for his 

wife’s writing and lack of sufficient detail.

We review the order of the BIA and will consider the underlying decision 

of the immigration judge only to the extent it was relied upon by the BIA. Dayo 

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v. Holder, 687 F.3d 653, 658 n.2 (5th Cir. 2012); Orellana-Monson v. Holder, 

685 F.3d 511, 517 (5th Cir. 2012). On review, we defer to a credibility ruling 

“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, 538–539 (5th Cir. 2009) (quoting Lin v. Mukasey, 534 F.3d 162, 167 

(2d Cir. 2008)). Under the REAL ID Act, which applies to Sha’s proceedings, a

court may make an adverse credibility determination based on any

inconsistency or omission, without regard to whether it goes to the heart of the 

applicant’s claim, as long as the totality of the circumstances shows that the 

alien is not credible. Id. at 537–39.

Here, the inconsistencies and omissions cited by the BIA constitute

substantial evidence supporting the adverse credibility finding based on the 

totality of the circumstances. See 8 U.S.C. § 1158(b)(1)(B)(ii), (iii); 8 U.S.C. 

§ 1231(b)(3)(C); Wang, 569 F.3d at 538. Sha has failed to show that no 

reasonable factfinder could disbelieve him. See Wang, 569 F.3d at 538.

We review for substantial evidence the BIA’s factual determination that 

an alien is not eligible for asylum or withholding of removal. Chen v. Gonzales, 

470 F.3d 1131, 1134 (5th Cir. 2006). Based on the adverse credibility finding 

against Sha, the BIA’s denial of asylum and withholding of removal satisfies 

the substantial evidence standard.

With respect to relief under CAT, we do not have jurisdiction to review a 

claim for which the alien has not exhausted his administrative remedies. 8 

U.S.C. § 1252(d)(1); Claudio v. Holder, 601 F.3d 316, 318 (5th Cir. 2010). The 

alien “must fairly present an issue to the BIA to satisfy § 1252(d)’s exhaustion 

requirement.” Omari v. Holder, 562 F.3d 314, 321 (5th Cir. 2009). We review

jurisdictional issues de novo. Claudio, 601 F.3d at 318.

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Sha does not brief any argument regarding the BIA’s determination that 

he waived the issue of his CAT claim by failing to adequately challenge the 

denial of CAT relief before the BIA. Accordingly, Sha has waived in this court 

any argument challenging the BIA’s determination. See Chambers v. Mukasey, 

520 F.3d 445, 448 n.1 (5th Cir. 2008). Sha did not file a motion to reopen or 

reconsider the BIA’s determination that he waived the issue of CAT relief. The 

record reflects that Sha did not exhaust his administrative remedies as to the 

denial of CAT relief, and this court thus lacks jurisdiction to separately 

consider the denial of his CAT claim. See § 1252(d)(1); Claudio, 601 F.3d at 

318–19.

The petition for review is DENIED.

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