FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JUNE 27, 2007

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 06-15294

Non-Argument Calendar

________________________

BIA No. A79-400-388

XIA CHEN, 

Petitioner, 

versus 

U.S. ATTORNEY GENERAL, 

Respondent. 

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(June 27, 2007)

Before BLACK, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

Xia Chen, proceeding pro se, seeks review of the Board of Immigration
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Appeals’ (“BIA’s”) decision, affirming the Immigration Judge’s (“IJ’s”) order

denying her application for asylum and withholding of removal under the

Immigration and Nationality Act (“INA”), and relief under the United Nations

Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment

or Punishment (“CAT”). We find that we lack jurisdiction to consider Chen’s

claims of persecution on the basis of China’s family-planning policies, and that

substantial evidence supports the IJ’s finding that she was not persecuted for her

participation in Falun Gong activities. Accordingly, the petition is dismissed in

part, and denied in part.

Background

Chen, a native and citizen of China, arrived in the United States on May 22,

2001 and requested asylum at the airport. In a sworn statement submitted at the

airport, she alleged that she had been persecuted on the basis of politics, that

someone had tried to rape her, and that although she reported the incident, her

assailant was not punished. Further, she alleged that she left because she was

afraid that she would be forced to marry someone against her will. At a subsequent

asylum interview, she explained that she was being threatened by a man named

Jin-Xing, a powerful businessman with an uncle who worked for the Chinese

government, because she had refused to marry him. She claimed that he had
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beaten her brother and had attempted to rape her in order to force her to marry him. 

At this second interview, she stated that she had never been detained or arrested for

any other reason. 

Before the IJ, Chen requested that she be allowed to amend her asylum

application, in light of the fact that she had a child after filing, and would now be

subject to China’s one-child policy. The IJ granted her request. She then testified

that she was from a rural part of Fujian province and that she and her brother were

practitioners of Falun Gong. She claimed that she and her brother were arrested

while meditating with other practitioners. At the police station, the chief of police

demanded that she marry his son, a man named Chen Jian Xing. After she refused,

both she and her brother were beaten. Chen claimed that she was next detained in

a small cell, until Chen Jian Xing took her to an interrogation room and attempted

to rape her. A knock on the door stopped him, and he left, but the chief of police

later returned and threatened to imprison her and her family if she did not agree to

marry his son. She agreed and was released from prison. She alleged that she later

complained to the authorities, but they declined to help her because of Chen Jian

Xing’s family connections. 

Chen admitted that she had not testified to these facts in her prior interviews. 

However, she claimed that she had not fully understood the questions she was
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asked or why she was being interviewed and had therefore refrained from saying

too much. She also alleged that she wanted another child and that she feared that

she would be prevented from having one if she was returned to China. 

The IJ denied Chen’s application, finding that she was not credible because

there were several inconsistencies in the information she provided Further, the IJ

concluded that even if she had been credible, she had not established a nexus

between the alleged events and her Falun Gong membership, as her testimony

established that the threatening policeman was only interested in obtaining her

agreement to marry his son. Additionally, the IJ found that Chen was not entitled

to relief on her family planning persecution claim, since country reports

established that the one child policy was fairly relaxed in the rural areas in which

Chen lived. Chen appealed this decision to the BIA, arguing that the IJ’s

credibility findings were against the weight of the evidence. She claimed that

discrepancies in her testimony were the result of anxiety, and that she had credibly

testified that she would be persecuted because of her Falun Gong activties. The

BIA adopted and affirmed the IJ’s decision, including his credibility finding. Chen

now seeks review of this decision.

Standard of Review

When the BIA issues a decision, we review only that decision, except to the
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extent the BIA expressly adopts the IJ’s decision. Al Najjar v. Ashcroft, 257 F.3d

1262, 1284 (11th Cir. 2001). We review the IJ and the BIA’s legal determinations

de novo. D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 817 (11th Cir. 2004). The

IJ’s and BIA’s factual determinations are reviewed under the substantial evidence

test, and we “must affirm the BIA’s decision if it is supported by reasonable,

substantial, and probative evidence on the record considered as a whole.” Al

Najjar, 257 F.3d at 1283-84 (quotation marks omitted). Likewise, a credibility

determination is reviewed under the substantial evidence test, and “[we] may not

substitute [our] judgment for that of the BIA with respect to credibility findings.”

D-Muhumed, 388 F.3d at 818.

Discussion

To establish eligibility for asylum, an applicant must demonstrate a wellfounded fear of persecution on account of race, religion, nationality, membership

in a particular social group, or political opinion. 8 U.S.C. § 1101(a)(42)(A). To

qualify for withholding of removal under the INA, an alien must show that it is

more likely than not that, if returned to her country, her life or freedom would be

threatened on account of one of the same protected grounds. 8 U.S.C.

§ 1231(b)(3). Thus, an applicant who is unable to meet the standard for asylum is

also unable to meet the more stringent standard for withholding of removal. 
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Huang v. U.S. Att’y Gen., 429 F.3d 1002, 1011 (11th Cir. 2005) (per curiam). For

CAT relief, an applicant must “establish that it is more likely than not that he or

she would be tortured if removed to the proposed country of removal.” ReyesSanchez v. U.S. Att’y. Gen., 369 F.3d 1239, 1242 (11th Cir. 2004) (quoting 8

C.F.R. §208.16(c)(2)). 

Before us, Chen argues that the IJ erred in concluding that she was ineligible

for INA or CAT relief on account of China’s family planning policies. However,

in her appeal to the BIA, she challenged only the IJ’s credibility finding insofar as

it related to her Falun Gong persecution claim and did not discuss her separate

family planning claim. Since this claim was not administratively exhausted, we

lack jurisdiction to review it and accordingly dismiss the petition on these grounds.

8 U.S.C. § 1252(d)(1); Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250

(11th Cir. 2006). 

Next, Chen argues that the IJ’s ruling on her Falun Gong persecution claim

is not supported by substantial evidence. The IJ based this decision, in part, on his

conclusion that her testimony was not credible. “[A]n adverse credibility

determination alone may be sufficient to support the denial of an asylum

application” when there is no other evidence of persecution. Forgue v. U.S. Att’y

Gen., 401 F.3d 1282, 1287 (11th Cir. 2005) (citations omitted). Indications of
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reliable testimony include consistency on direct examination, consistency with the

written application, and the absence of embellishment as the applicant repeatedly

recounts his story. Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1255 (11th Cir. 2006)

(per curiam); see also Dalide v. U.S. Attorney Gen., 387 F.3d 1335, 1343 (11th Cir.

2004) (affirming the BIA’s adverse credibility determination, which was based

upon its finding that the applicant’s testimony conflicted with his answers to

interrogatories, affidavit, deposition, and other documentary evidence). 

Here, there were several material inconsistencies in Chen’s testimony before

the IJ and her earlier interviews, namely (1) her failure to mention her Falun Gong

membership prior to the hearing before the IJ; (2) her earlier statement that she had

never been arrested or detained, as compared to her later assertion that she was

arrested while meditating; (3) her initial statement that only her brother was beaten,

and her later testimony that she was beaten as well; and (4) inconsistencies in the

name of the man who threatened her and his relationship with government

officials. As such, there is substantial evidence supporting the IJ’s adverse

credibility finding. Further, although Chen presented country reports documenting

the treatment of Falun Gong members generally, she presented no evidence beyond

her incredible testimony that she was persecuted. See Forgue, 401 F.3d at 1287

(noting that an adverse credibility determination does not alleviate the IJ’s duty to
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consider other evidence produced by the asylum applicant). Thus, we cannot say

that the IJ erred in finding that Chen failed to demonstrate eligibility for INA or

CAT relief. Accordingly, we dismiss the petition in part, and deny the petition in

part.

PETITION DISMISSED IN PART, DENIED IN PART