The Honor able Na ncy G. Edmunds, United States District J udg e for the Easter n District of * Michig an, sitting by

desig nation. NO T R EC OM M EN DE D F OR P UB LIC AT ION File Na me: 08a0771n.06 Filed: De cembe r 18, 2008 No. 08-3131 UN ITED STA TES C OU RT OF AP P EA LS F OR THE SI XT H C IR CU IT

PE THET WI

N, Plaintif f - Appellee

,

v. MI CH AE LB . M UK

ASE Y, Attor

ne y Ge ne ra l,
De fe nd an t - Ap pe lla nt. ) ) ) ) ) ) ) ) ) ) ON AP P EA L F RO M THE B OA RD OF IM M IG RA TIO N A P P EA LS

BEFORE: COLE and COOK, Cir cuit Judges; EDMUNDS, District Judge *
EDMUND S , District

Judge. Petitioner, Pe Thet Win, is a citizen of B urma who se eks revie w of a

decision by the B oard of

I mmigration Appeals (B I A) upholding the I mmigration J udg e’s (I J ) denia l of hi s application for asylum, withholding of remova l, and protection under the U nited Nations Convention Ag ainst Torture ( CAT). The I J denied Win’s application for asylum, finding that he fa iled to show that he had a pplied for a sy lum within one y ear o f his entry into the United States. Altern at i v ely , the I J denied Win’s claim for a sy lum because Win was found not to be2

cre dible. The I J also denied Win’s claims for w ithholding of re m oval under the I mmigration and Na tu ra l i z at i o nAc t(INA ) a n d p r o t e c t i o nu n d er t h e C AT b as edo nan ad v er s e c re d i b i l i t y fi n d i n g. Be cause this Court lac ks jurisdiction to re view Win’s asy lum application and substantial evidenc e supports the I J ’s adve rse c redibility deter mination, we DENY the petition for re view. I. Win i s a 36-y ear

old, single, ma le native and citizen of B urma. He claims that he suff ere d past perse cution in Burma based on his political opinions, entered the U nited States throug h Seattle, Was hin g ton

on May 11 , 2 00 1, and

wi ll s uf fe r f utu re pe rse c uti on

or tor tur e if fo rc e d to re tur

n to Bur ma. A. 2002 Asylum A ppl ication Win’s application for asy lum, withholding of r emoval and pr otection under the CAT shows tw o d a te -r e c e ive d s tamps : on e fo r A pr il 2 2, 20 02 and

the oth e r f

or Ma y 10 , 2 00 2. I n it , Win

c la ims that he had been arr ested, perse cuted, and abused in B urma on three separ ate occa sions after taking part in political demonstrations and distributing pr o-democ rac y literature

. The fir st arre st was on Aug ust 11, 1988. Win contends that he was detained for five day s by the Military

I ntellige nce ( MI ) people . During that detention, he wa s harshly interrog ated unde r inhumane tre atment. He was taken out of detention afte r his f ather bribed an MIoffice r. Afte r being rele ased, Win had to repor t to the M I office bi-wee kly to confirm that he ha d not travele d to other parts of B urma. Win was arre sted ag ain the following y ear , on Aug ust 8, 1989, when the MI rounded up a

nd

arr e ste d th os e de mon str a tin g on the fi rs t 8- 8- 88 ann ive rs ary . D ur inghis on e -w e e k d e te nti on , Win3

claims that he wa s subjected to har sh interrog ation and inhum an e t re atm ent. Once ag ain, he wa s rele ased after his fathe r bribed an MI office r. After this, W in asserts that he w as fr ee to be involved in politi cs ag ain. He wa s o penly involved with the National L eague for Democr acy

(NL D), the political party

he believe d and still believes is the m ost qualified to re store democ rac y and human rig hts to Burma. B urma’s military g overnme nt allowed political par ties to compete in the upcoming national elec tions to be held on May 27, 1990. Although he remained pol itically active, and despit e the arre st of NL D leade rs, Win was not

arr ested a g ain until almost seven y ear s later on Ma y 26, 1996. Win claims that his f ather was not
so fo rt un a te . Win ’s father jo in e d a po lit ic a l de mon str a tio n, wa s su bs e qu e ntl y

arr e ste d b y

the MI people, a nd tortured to death for endang ering the state on April 30, 1995. In 1996, afte r his fathe r’s de a th, Win b e c a me mor e he a vil y inv olv e d in

po lit ic a l a c tiv iti e s, dis tr ibutin g le a fl e ts a nd pamph le ts to celebr ate the sixth anniversary of the pro- democr acy

NL D national ele ction victory

. On May 26, 1996, MIpeople c aug ht Wi n distributing political materia ls, a nd he wa s arr ested for de stabiliz ing the country . Win was sent to Toung oo Prison. During his hard labor sentenc e at Ba ssein-Manda lay

Construction Camp, W in claims that he wa s deprived of food, sleep, a

nd hy g iene supplies. Win w a s r e le a se d in

19 97 , a ft e r bein g i n pri so n f or on e y e ar. B e fo re be ingre le a se d, Win claims that he wa s forc ed to sig n a promissory note, ag ree ing not to be involved in politi cs any more. Despite his for ce d signature, Win continued to be involved with the pro- democr acy and h u ma nr ig h ts mo v e me n ts in

B u r ma . B e c a

u s e h e w a s n o t h ig h ly

e d u c a te d , h is a c ti v it ie s involved d i s t r i b u t i n g p a mp h l e t s an d l e a f l e t s a b o u tc o n v e n i n g a

p r o - d e m o c r a c y

p ar l i a m e n t
. M an y

N LD4

members we re a

rre sted in Aug ust 1998. Bec ause Win fea red a rre st and jail , h e fl ed Burma f or a ref ug ee c amp in Thailand in September 1998. Win remained in Thailand until Aug ust 2000; a period of a lmost t wo y ea rs . W h i l e i n the Th a ila nd re fu g e e c a mp, Win c on ta c te d a br ok e r w ho arr ang e d to have him take n by sh ip to S e ou l, South Korea. F rom September 2000 to Ma rch 2001, Win stay ed at the Burmese Comm unity Center for B urmese r efug ees loc ated in Seoul, South Korea . He lef t Korea for t h e Uni ted States when someone ther e arrang ed for him to board a ship for America

. Win claims that he ar rived in Seattle, Washington on May

11, 2001, and continued on to G rand Rapids, Mic higa n. At the time he filed his asy lum application, Win resided in Wy oming, Michig an. Win fears that, if r eturne d to Burma , he will b e d et ai ned, torture d to death, cr emated, a nd dumped w i t h o u t any one in his family knowing why

he has disappe are d. Win bases his fear s of future pe rsec ution on the fac ts that ( 1) his fathe r wa s tortured to death for his political involvement in 1995; (2) on three separ ate oc casions, Win hims elf ha d been a ccuse d , ch arg ed, ar rested, interrog ated, a

nd sever ely

mistreated in B urma; and ( 3) since his a rre sts, he has bee n on the MI ’s black list and closely

watche d. Win believes that the MIacquir ed all his persona l information when he was a rre sted in 1988, 19 89 , a nd 19 96 , a nd pla c e d h im o n a

bla c k li st an d h a ve e arm ark e d h im f or arr e st w he n a

nd if
s o m e t h i n g h a

p p e n s t o d e s t a

b i l i z e t h e i r o nr

u l e o f t h e m i l i t ar

y. B. Rem oval P roce edings an d IJ Decision On J une 13, 2002, the f

ormer Immigration and Natura liz ation Service (now the D epar tment of Homela

nd Security

), initiated remova l proce eding s ag ainst Win by issuing a Notice to Appear andTwo minor cha ng es we re ma de to the Win’s ap p l i ca t ion. First, the date political parties 1 wer e allowe d to compete in the upc oming B urma national election wa s chang ed from 1989 to 1988. Second, a corr ection was made to r efle ct Win was sever ely mistreated dur ing his thre e ar rests; not two. 5 char g ing Wi n under Section 212(a) (6)( A)(i) of t he I NA, as a mended, 8 U.S.C. § 1182(a) (6)( A)(i) , as an a lien p re s en t in the United States without being admitted or par oled, or a n alien who ha s
arr ive d in the Un ite d St a te s at a

tim e or pla c e oth e r t

ha n d e sig nate d b y

the Attor ne y Ge ne ra l. Removal proce eding s were held on s ever al dates in 2002, 2005, and 2006. At the 2002 and 2005 proce eding s, Wi n, who was repr esente d by counsel, admitted the alleg ations of fa cts alleg ed ag ainst him, ex cept f

or his date of entry

into the United States, and conc eded the char g e of
re mov a bil ity . T he I J inf

or me d Win that it wo uld be his burd e n to est a

bli sh the date of

his e ntr y int o the U n it e d St a te s , th a t th e o n e - y e ar b ar w a s a t is s u e , an d th a t it w a s Wi n ’ s burden to show exceptional circ umstances so as t o es t abli sh an exception to that one-y ear bar. D espite Win’s counsel’s r equest and the I J ’s g rant of per mission t o supplement Win’s application for a sy lum, no supplement or ame nded application was filed. 1 The I J issued an ora l decision and wr itten order on Ma rch 28, 2006, de ny ing Win’s

a pp lic a tio n f

or a sylum , wit hh old ingof

re mov a l, a

nd pr ote c tio n und e r t

he CA T, and

or de re d Win
remove d to Burma

. 1. As ylu m Cl aim Win’s asy lum claim was denie d on three alternative g rounds. Fir st, the I J found that Win had not shown, by

clea r and c onvincing evidenc e, that he ha d first arr ived in the United States on May 11, 2001 and thus had not shown that his application for asylum had been f iled within one y ear

of6

the date he first arr ived i n the Unit ed S tates. Win had not argued or prese nted evidence that e ither chang ed or e x traordina

ry circ umstances c aused him t o miss the one-y ear deadline. A ccor dingly , the I J c on c lud e d tha t Win wa s sta tut or ily ba rr e d f ro m ob ta ini ngthe a sylum re lie f h e so ug ht. 8 U .S. C. § 1158(a) (2)( B)

. Se c on d, the I J con c lud e d th a t, e ve n if Win’ s a sylum

c laim were not s ta tut or ily ba rr e d, it
wo uld be de nie d on the me ri ts. Ob se rv ing that an ap pli c ant fo r as y lum mus t dem on str a te that he i s
a “ re fu g e e ” wi thi n th e me anin g of 8 U.S. C. § 1101 (a )( 42 )( A) , the I J fo un d tha t Win’s c la ims of pa st perse cution an d fe ar o f fu ture pe rsec ution lacked c redibility . Be cause he wa s found not to be a
c r e d i b l e w i t n e s s , t h e IJ c o n c l u d e d t h a t W i n h a d n o t s h o w n t h a t h e w a s a “ r e f u g e e ” a s d e f

i n e d b y § 1101(a) (42)( A). The I J stated spec ific re asons in support of her adver se cr ed ibilit y

finding , relying on ( 1) inc on sis te nc ie s b e tw e e n Win’ s te sti mony and wr itt e n a pp lic a tio n th a t w e re c re a te d b y omi ssi on s in
on e or the oth e r, (2 ) i nc on sisten cie s betwe e n Win ’s te sti mony and a ff ir ma tiv e state me nts in h is written application, (3) the lac k of re asonable or plausible explanations for those inconsistencies and omissions , (4) the la ck of c o rr o b o ra t i n g evidenc e that wa s rea sonably available to Wi n, and (5)
corr oborating evidenc e pre sented by Win t hat fa iled to support his claims of past perse cution. L astly , the I J conclude d that, even if Win’s asy lum claim were not statutorily barr ed and he was found to be cre dible, his asy lum claim would be denied on the merits for a nother re ason. The
re lie f o f a sylum

is d isc re tio na

ry , a nd the I J con c lud e d th a t Win wa s n ot e nti tle d to a

fa vo ra ble exercise of

d i s cr et i o n beca

use, amongother re asons, Win had spent approximately two y ear s in a7

ref ug e e c a mp in

T h a il an d an d s ix m o n th s in

So u th K o r e a , b o th

s a f e h a v e n s , b u t n e v e r

r equeste d

a sylum

. After providing rea sons f

or deny ing Win’s asylum claim, the I J addre ssed Win’s claims for withholding of r emoval under the I NA and pr otection under

the CAT. 2. Withhol din g of Rem oval Under INA The I J first observe d that, unlike asylum, the gra nt of withholding of r emoval under Section 24 1( b) (3 ) o f the I

NA is not dis c re tio na

ry . To ob ta in t

his re lie f, ho we ve r, Win mus t sh owthat it is “more likely

than not” that he w ould be per secute d on one or mor e o f t h e s t atutorily protec ted g rounds. The I J conclude d that Win fa iled to me et that burden a nd denied his re quest for a g rant of wi thh old ingof

re mov a l un de r t

he I NAbe c a us e Win w a s f

ound no t to be a

c re dib le wi tne ss. The I J also conclude d that, even if Win was found to be credible, his claim for withholding of re moval would be denie d beca use Win had not shown “a cl ea r p ro b ability ” that he w ould be pe rs e c ute d if

he was re mov e d to B ur

ma . T he I J bas e d th is c on c lus ion on the fa c t th a t ( 1) Win
re ma ine d un ha

rm e d in B ur

ma fr om Au g us t 19 89 un til Ma y 26 , 19 96 , a

pe ri od of a lmo st s e ve n y e a rs , e ve n th ou g h h e a dmi tte d th a t he wa s p oli tic a lly a c tiv e , a nd (2 ) Wi n r e ma ine d unh arm e d in B ur ma from May

1997 until S eptember

199 8 , ev en t houg h Win continued his pol itical activityin prodemocr acy

eff orts in Burma , albeit more se cre tly than in the past. 3. P rote ction Under the CA T Win’s request for withholding of remova l unde r the CAT was also denied ba sed on the I J ’s adver se cr edibility

finding . The I J also conc luded that, eve n if found to be cr edible, Win’s claim for protec tion under the CAT would be denied because Win had not shown that it was “ more likely than8

n o t ” t h at h e w o u l d

s u ff er t h e t o rt u re h e f

ea rs i f r e m o v e d t o Bu rm a. C i t i n g Castellano-Chacon v. IN S , 3 41 F .3 d 5 33 (6 th C ir . 2 00 3) , th e I J con c lud e d th a t g e ne ra lize d d e sc ri pt io ns of human r ig hts violations in C ountry

Conditi on Reports prepa

red by the S tate Department were insufficient to show that it is mo re like ly

tha n n ot t hat Win wo uld be tor tur e d f or his po lit ic a l op ini on s if

re tur ne d to Bur ma. C. Appeal and BIA Decision Win fil ed a timely appea l with the B I A. I n a January 7, 2008 decision, the B I A found that the fa ctual finding s of t he I J wer e not clea rly err oneous. I t adopted and aff irmed t he I J ’s dec ision denying Win’s application for asylum, withholdi ng of re moval under the I NA , and for protec tion under the CAT, and dismissed Wi n’s appe al. Specific ally , the B I A conc luded that the I J had
corr ectly found that Win had not demonstrated by clea r and c onvincing evi d en ce that his asy lum application wa s timely . The B I A next co n cl u d ed t h at t he I J had ade quately cited a ba sis for the adver se cr edibility

finding , noting the ma

jor discre pancie s betwee n Win’s testi mon y , his written application, and his c orrobor ating evidenc e. As for Win’s reque sts for withholding of remova l under the I NA and f or protec tion under the CAT, the B I A af firmed the I J ’s ana ly s i s and conc lusion that Win had not demonstrated past perse cution or a c lear probability

that he would be pe rsec uted or that it was more likely

than not that he would be torture d if remove d to Burma . Finally , the B I A re jected Win’ s argume nt on a

pp e a l that he sh ou ld have be e n in “ As y lum On ly ” pr oc e e din g s becau se Win
conce ded re movability

and the c harg e or nature o f p ro ce edings was not an issue in his re moval hear ings be fore the I J . The B I A also concluded t hat W in failed to show that he was pre judiced under these c ircumstance s.9 II. Win’ s c la ims fo r a sylum and wi thh old ingof

re mov a l are base d o n h is a lle g e d p a st perse cution and fea

r of future perse cution or torture in B urma for holding pr o-democ rac y political opinions. His petiti on argues that (1) the B I A er red w hen it upheld the I J ’s findin g t hat Win was statutorily ineligible f

or asylum because he fa iled to tim el y fi l e h i s application; (2) the BIA er red when it upheld the I J ’s findi ng that he lacked credibility and thus denied his application for a g rant of withholding of

remova l under the I

NA and for relief under t he C AT; (3) as to W in’s withholding of re moval claim under

the I NA, the BIA err ed when it uphe ld the I J ’s alter native conc lusion that Win h a d n ot m e t hi s b ur de n o f s ho wi nge ith e r p a st pe rs e c uti on or a c le ar p ro ba

bil ity that he wo uld be per secute d if remove d to B urma; (4) as to Win’s reque st f or re lief under

the CAT, the B I A er

red when it upheld the I J ’s alter native conclusion that Win had not me t his burden of showing that it was more likely

than not that he would be tor tured if he was re moved to Bur ma; and (5) the B I A er

red when it determined that Win’s arg ument -- that the proceeding s below should have be en “A sy lum O n ly” p r o c e e d in g s b e c a

u s e h e e n te r e d th e U n it e d St a te s a s a s to w aw ay - - w a s w a iv e d when he
conce ded re movability , did not c h al l en ge that charg e or the nature of the proc eeding s below, and failed to show pr ejudice. We beg in with the gover

nment’s arg ument that this Court l acks jurisdiction to revie w Win’s asylum claim. A. Jur isdi c ti on t o R e vie w the As ylu m Cl aim The B I A upheld the I J ’s findi ng that Win had not shown that his application for asylum was timely

. The I J found t hat W in had failed to provide cle ar a nd convincingevidenc e that his asylumTh e statut e pr ov ide s th a t: 2 No cour t shall have jurisdiction to r eview any deter mination of

the Attorney

Gene ral under pa rag raph ( 2). 8 U .S. C. § 11 58 (a )( 3) . Pa ra g ra ph(2 )( B ) a dd

re sse s th e on e -y e ar t ime ba r f or a sylum a pp lic a tio ns . 10 applicati o n wa s fi led within one y ear of his arr ival in the United States as re quired by 8 U.S.C. § 1158(a) (2)(B)

. T h e I J also observe d that Win di d not argue or pr esent e vidence that there wer e
c ha ng e d o r e xtra or din ary

c ir c ums tanc e s th a t w ou ld h a ve jus tif ie d th e I J’s cons id erat ion of his untimely application. See 8 U.S.C. § 1158(a) (2)( D). L ikewise, Win did not raise any constitutional
c la ims or ma tte rs of statut or

y c on str uc tio n, a fa c tor that w ou ld h a ve a llo we d th is C ourt to e xer c ise jurisdiction over his asylum claim. See A lmuhtaseb v. Gonzales , 453 F.3d 743, 748 ( 6th Cir. 2006). Appellate r eview of asylum claims is statutorily limit ed. 8 U.S.C. § 1158(a) (3). This Court 2

rec ently observe d that “§ 1158(a )(3) ‘bar [s] our rev i ew o f as y lum applications denied for untimeliness . . . when the appe al see ks revie w of discretionar y or fa ctual questions, but not when the appe al see ks review

of constitutional claims or matters of st at u t o ry construction.’” Huang v. Mukase y , 5 2 3 F. 3 d 6 4 0 , 6 5 0 (6 t h C i r. 2 0 0 8 ) ( qu o t i n g Almuhtaseb , 453 F.3d at 748). Be cause Win’s appea l does not seek r eview of constitutional claims or matters of statutory construction, this Court lacks jurisdiction to review the I J ’s fa ctual finding that Win’s application was untimely

. B. Cl aim for Wit hhol ding of R e m ov al U nde r th e IN A a nd t he CA T Although this Court lac k s ju r is d ic ti o n to r eview Win’s asylum claim, it does have jurisdiction over Win’s appe al of the B I A’s denia l of his reque sts for wit hholding of remova l under the I

NA and for pr otection under

the CAT. See Sall v. G onzales , 251 F. App’x 337, 339 (6th Cir. 2007) (c iting Castellano-Chacon , 341 F.3d at 544-52). “B eca use the BIA adopted the I J ’s decision, we revie w11

the I J ’s decision directly .” Sa ll , 2 5 1 F. Ap p ’x at 3 3 9 (c i t i n g Y u v . A sh c ro

ft , 3 64 F .3 d 7 00 , 7 02 (6 th Cir. 2004)). 1. Alien’s Burden of P roof An alien c an re quest the re lief of a withholding of r emoval under both the I NA, 8 U.S.C. § 1231(b)( 3), and the CAT. Almuhtaseb v. Gonzale s , 453 F.3d 743, 749 ( 6th Cir. 2006). The alien’ s burden o f p r o o f u n d e r th e I N A an d th e CA T is d if

f e r e n t. “ T o qu a li f

y f o r w it h h o ld in g o f

remova l under the I

NA, an a pplicant must establish that there is a ‘ clea r proba bility ’ that if [he] were
remove d, [hi s] l ife or f

ree dom would be threatened on a ccount of political opinion or the other protec ted grounds listed in 8 U.S.C. § 1231(b)(3)( A).” Xiao Ji Chen v. United States D OJ , 434 F.3d 144, 155-56 (2d Cir. 2006). To show that there is a “c lear probability ,” the a

pplicant must show that “‘i t is more lik e ly

tha n n ot, ’ t hat [he ] wo uld

be su bje c t to pe rs e c uti on ” on

a c c ount o f a

statut or ily protec ted g round if he w as re moved. Almuhtaseb , 4 5 3 F. 3 d at 7 4 9 (q u o t i n g Liti v. Gonzales , 411 F.3d 631, 640- 41 (6th Cir. 2005)). “Evidenc e of past perse cution cre ates ‘a rebuttable presumption . . . that there is a clea

r proba bility of a f uture thre at should the applicant be re turned.” Xiao Ji Chen , 4 3 4 F. 3 d at 1 5 6 (c i t i n g Se cai da -Ro sa les v. INS , 331 F.3d 297, 306 ( 2d Cir. 2003) and 8 C.F.R. § 208.16(b)( 1)). “By contra st, to be eligible for withholding of remova l under the CAT,” the a pplicant must show that “it is more li kely than not that he or she would be tortured if re moved to the proposed country of re moval.” Almuhtaseb , 453 F.3d at 749 (interna l quotation marks and citation omitted). 2. Stand ard of Review

“ We r e vie w the B I A’ s d e c isi on on a re qu e st f or wi thh old ingof

re mo val unde r t

he same sta nd ard re g ard le ss o f w he the r t

he re qu e st wa s ma de purs ua nt t o th e I NAor the CA T.
. . . We wi ll12

reve rse the B I A’s dete rmination ag ainst withholding of remova l if it is ‘manife stly contra ry to law.’” Id. at 749 (quoting 8 U.S.C. § 1252(b)(4)( C)). “To r ever se the BIA’s dete rmination, we must find that the evidenc e not o n l y s u p p o rt s a contra ry conclusion, but indeed c om pe ls it.” Id . (interna l quotation marks and c itation omit ted). As to fa ctual finding s, “[ w] e def er to the a dminist rative finding s of fa ct except when ‘ any rea sonable a djudicator would be compelled to co n cl u d e to t he contra ry .’” Id. (quoting 8 U.S.C. § 1252(b)(4)( B) ). 3. Adverse Cre dib ility Dete rm ination The I J denied Win’s claims for w ithholding of re moval under the I NA and the CAT based on a finding that his testimony about past per secut i o n an d fear of f uture pe rsec ution lacked
c r e d i b i l i t y , t h u s p r e c l u d i n g h i m f r o m s a t i s f y i n g h i s b u r d e n o f p r o o f

. T h i s i s t h e s a m e r e a s o nt h e IJ de te rm ine d tha t Win’s c la im fo r as y lum wo uld be de nie d ev e n if it had be e n time ly . The B I A h e ld that the I J ’s adve rse c redibility finding was not cle arly

err oneous bec ause of

the major discr epanc ies betwee n Win’s testi mony , his written application, and his c orrobor ating evidenc e. Win arg ues that t h e B I A e rr edwh en i taf

fi rm edt h e IJ ’s ad v er s e c re d i b i l i t y fi n d i n g. Credibility

deter minations are fi n d i n g s of fa ct re viewed unde r the substantial evide nce standard. Sy lla v . I

NS , 388 F.3d 924, 925 ( 6th Cir. 2004). This is a highly defe rential standa

rd of revie w, re quiring that “finding s of fact are ‘conclusive unl ess any rea sonable adjudicator would be compelled to conc lude to the contra ry .’” Y u v . A sh c ro

ft , 364 F.3d 700, 702 (6th Cir. 2004) (quoting 8 U.S.C. § 1252(b)( 4)(B )). Although hig hly defe rential, “ the deter

mination must be supported by specific rea sons, must not be base d on irrele vant inconsistencies, a nd must be base d on issues that ‘g o to the hear

t of ’ the a pplicant’s cla im.” Xhamxhi v. Gonzales , 188 F. App’ x 472, 475 (6th Cir.“The REALI D Act of 2005, Pub.L . 109-13, 119 S tat. 231, chang ed the standard g overning 3 cre dibilit y

deter minations, stating that those deter minations may

be made without reg ard to whe ther an inconsistency , inacc urac y , or fa lsehood g oes to the hea rt of the applicant’ s claim. This provision, howeve r, applies only

to those aliens who applied for a sy lum, withholdi ng of re moval, or other r elief on or afte r May 11, 2005, the eff ective date of this provision of the Act. Sa ll , 251 F. App’ x at 340, n.1 (interna l quotation mar ks and citations omitted). B eca use Win applied for re lief ea rlier than Ma

y 11, 2005, this provision of the REALI D Act doe s not a pply to this C ourt’s re view of his cla ims. Id.
For example, the inconsistency betwee n Win’s testi mony th at he had no br others and the 4 state me nt a

bo ut h is “b ro the rs ” in h is a pp lic a tio n f

or a sylum do e s n ot g o to the he art

of Win’ s c la ims and thus ca

nn o t form a ba sis for the I J ’s adve rse c redibility finding . “[M] inor and irr eleva nt inconsistencies c annot constitute the basis of a n adver se cr edibility

deter mination.” Sy lla , 388 F.3d at 926. 13 2 0 0 6 ) ( qu o t i n g Sy lla , 388 F.3d at 926). “I f discre pancie s ‘c an n o t b e v i ew ed as attempts by the applicant to e nhance his claims of perse cution, they have no be aringon cre dibilit y .’” Daneshv ar v. As hc ro ft , 3 5 5 F. 3 d

6 1 5 , 6 2 3 (6 t h C i r. 2 0 0 4 ) ( qu o t i n g S h a h v . I NS , 220 F.3d 1062, 1068 ( 9th Cir. 2000)). Be cause the B I A adopted a nd aff irmed the I J ’s adver se cre dibilit y finding , we r eview the 3 I J ’s finding direc tly

. Yu , 364 F.3d at 702. Despite Win’s arguments to the contrary , substantial evidenc e supports the I J ’s finding that Win was not credible a

bout his past p ersecution or his fea r of f uture pe rsec ution. I n this case, althoug h a fe w of the inc onsistencies identified by the I J wer e irre levant, we c onclude that a revie w 4 of the re cord a s a whole w ould not comp el a re asonable adjudicator to conclude that Wi n was
cre dible. S

e e Yu , 3 64 F .3 d at 70 2. Othe r i nc on sis te nc ie s th a t th e I J re lie d u po n f or he r a dv e rs e
cre dibilit y

finding g o to the heart of W in’s claims of past perse cution and fear of future pe rsec ution in Burma and ca n be viewe d as attempts by him to enhance his claims of perse cution. First, Win testified tha t , af t er h i s August 1989 arr est, he wa s place d on a watch list, was
re qu ir e d to re po rt

to t he g ov e rnme nt a

uth or iti e s bi- we e kly , a

nd no tic e d mi lit ary

int e lli g e nc e pe op le14

coming around his home. As the I J noted, Win’s application for a sy lum states ot herw ise, i.e., that

a ft e r thi s Augus t 1989 arr e st, he wa s f re e to b e inv olv e d in

po lit ic s a g a in. Ad dit ion a l r e c or d f a c ts
corr ob orat e Win’ s w ri tte n a dmi ssi on and un de rm ine the c re dib ili ty of his te sti mony

a bo ut p a st perse cution and fe ars of

future pe rsec ution or torture in B urma. De s pite his continued political activity , Win remained unhar med i n Bur

ma for almost seven y ear s, the period betwee n his alleg ed Aug ust 1989 and May

6, 1996 arr ests. Win also testified that, a lthough he continued his political activity in pro-democ rac y

eff orts in Burma , albeit more se cre tly than in the pas t, he re mained unharme d i n Bu rm a fr o m May 1997 until S eptember

1998, when he left for

Thailand. We have observe d that this ty

pe of evidenc e indicates that the applicant’ s situation “ was not sufficiently g rave to constitute persec ution.” Almuhtaseb , 453 F.3d at 750 (citing case s). The I J ’s adve rse c redibility finding is further suppor ted b y omissions in the corr oborating evidenc e Win presented a nd the lack of

corr oborating evidenc e r ea s o n ab l y available to Wi n. Al tho ug h Win te sti fi e d tha t NL D re pr e se ntativ e Aung Soe Myint wa s aw are of his pa st thr e e arr e sts , the le tte r f

ro m My int that Win pr e se nte d a s c or ro bo ratin g e vid e nc e fa ile d to me nti on any of tho se
arr ests. Simi larly , althoug h Win testified that his mother was a war e of his thre e ar

rests and mistreatment and ha d let him know that the B urmese g overnme nt authorities wer e still asking a bout his where abo uts , Wi n

f a ile d to obtain either a

n aff idavit or statement fr om his mot her a cknowledg ing

any of the se fa c ts de sp ite he r ab ili ty to pr ov ide him wi th oth e r doc ume nts lik e his bir th c e rt if ic a te and fa mily cer tificates. His mot h er co uld have a lso corrobor ated Win’s testimony about the circ umstances of

his father ’s death in 1995. I J determ i n ations reg ardingthe ava ilability of
corr oborating evidenc e ar e not to be reverse d “unless the court finds

. . . that a re asonable trier of fac tThe REAL I D Act of 2005 amende d 8 U.S.C. § 1252(b)(4). This amended pr ovision took 5 effect on May

11 , 2 00 5, and , purs uan t to § 101 (h) (3) of th e RE AL I D Act, P ub . L . 1 09 -13 , Di v. B, Title I , 119 Stat. at 305, applies t o all case s wher e the final administrative orde r of r emoval is issued befor e, on, or a fter Ma

y 11, 2005. Acc ording ly , Win’s appeal is g overne d by this standard. 15 is compelled to conc lude t hat s uch corroborating e vidence is unavailable.” 8 U.S.C. § 1252(b)(4). 5 Th e re is n oth ingin t

he re c or d th a t w ou ld c omp e l a re a so na ble tr ie r o f f

a c t t o co nc lud e that th is
corr oborating evidenc e wa s unavailable

. Acc ording ly , the I J ’s deter mination cannot be r ever sed. The a bove inconsistencie s g o to the hear t of Win’s claims for withholding of remova l and

are su ff ic ie nt to sup po rt the I J’s ad ve rs e c re dib ili ty

de te rm inatio n. Thus , th e re is n o n e e d to a dd re ss Win’s additional arg ument s ab o u t o ther inconsistenc ies. See X hamxhi , 188 F. App’ x at 476 (o bs e rv ingthat “ [o]th e r c ir c uit s h old that a sin g le inc on sis te nc y

may su pp or t an a dv e rs e c re dib ili ty finding .”). He re , th e I J det e rm ine d that, e ve n if Win’ s a sylum a pp lic a tio n ha d be e n tim e ly , his re qu e st fo r a sylum

wo uld be de nie d o n th e me ri ts be c a us e he wa s f

ound no t to be c re dib le and

thu s c ou ld not establish past perse cution or a w ell-founde d fea r of f uture pe rsec ution. Bec ause w e conc lude that the I J ’s adve rse c redibility finding s were sufficie nt “ under the less string ent standar ds for pe tition of asy lum, the I J ’s finding s were also sufficie nt to rejec t [ Win] ’s petition based on the more exacting standards used for withholding of re moval and CAT.” Sa ll , 251 F. App’ x at 341 (c iting Hamida v. Gonzales , 478 F.3d 734, 741- 42 (6th Cir. 2007) and Mi k ha ile v itc h v . I

NS , 1 46 F .3 d 3 84 , 3 91 (6 th Cir. 1998)). C. “ As y l u m on l y ” cl a i m.16

The B I A deter

mined that Win had waived the argument that he should have been in “ Asy lum Only ” proce eding s. Despite Win’s arg uments to the contrar y , the B I A did not err. Win was c harg ed, under Sec tion 212(a)( 6)(A) (i) of the I NA, as a mended, 8 U.S.C. § 1182(a) (6)( A) (i ), as a n alien prese nt in the United States without be ing a dmitted or paroled, or as an a lien who has a

rrived in the Un ite d St a te s at a

tim e or pla c e oth e r t

ha n d e sig nate d b y

the Attor ne y Ge ne ra l. Th e re c or d r e fl e c ts that Win c on c e de d th is c ha

rg e of re mov a bil ity

. Mo re ov e r, Win ne ve r c omp la ine d to the I J abo ut t his
c ha rg e or the natur e of

his re mov a l pr oc e e din g s. Ra the r, he ra ise d th is c ha lle ng e fo r t he fi rs t ti me i n h i s a d m i n i s t r a t i v e a

p p e a l

. B e c a

u s e W i nf

a i l e d t o r a i s e t h i s ar g u m e n tb e f o r e t h e IJ , t h e B IA
corr ectly conclude d that the ar g ument was wa ived. See She hu v. Gonzales , 151 F. App’x 437, 441- 42 (6th Cir. 2005) (holding that, beca use the pe titioner fai l ed t o compl ain about a tr anslator’ s defic iencies dur ing his remova l proce eding s, “the B I A prope rly held that he wa ived any

objection to the quality

of the tra nslation.”). III . For the fore g oing r easons, we DENY the petition for re view.