FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

SEPT 06, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 05-15827

Non-Argument Calendar

________________________

BIA No. A70-895-480

XIANG YONG WANG, 

Petitioner, 

versus 

U.S. ATTORNEY GENERAL, 

Respondent. 

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(September 6, 2006)

Before DUBINA, HULL and RONEY, Circuit Judges.

PER CURIAM:
 Of particular note, Wang’s asylum application listed a name, Wang Xingqi, and date of 1

birth, August 20, 1992, for his second child.

2

Xiang Yong Wang, through counsel, petitions for review of the Board of

Immigration Appeals’ (“BIA”) decision affirming without opinion the immigration

judge’s (“IJ”) denial of asylum and withholding of removal. Based on the IJ’s

findings that Wang’s testimony was not credible, a decision uniquely the province

of the trier of fact, substantial evidence supports the decision that Wang failed to

meet his burden of proof on his various claims for relief. The petition for review is

denied. 

Wang, a native and citizen of China, arrived in the United States in 1993

without a valid unexpired immigrant visa or other valid entry document and was

detained by the former Immigration and Naturalization Service (“INS”). 

Subsequently, Wang filed an application for asylum based on his political opinion,

alleging that he was persecuted for violating China’s birth control policy. 

Specifically, Wang stated that he and his wife had to run away from home after his

wife became pregnant with their second child, and that when they returned “[a]fter

[their] second child was born,” their hut had been destroyed and they were ordered

1

by the family planning workers to pay a fine. Wang claimed that the family

planning workers wanted his wife to be sterilized, but because she was in poor
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health she could not have the operation, and therefore, the family planning workers

“were forcing [Wang] to have the sterilization operation.” Thereafter, Wang

allegedly fled China in order to avoid being sterilized, and came to the United

States. 

In 1996, the INS referred Wang’s case to an IJ for a hearing on his asylum

application after determining that he did not suffer past persecution or have a wellfounded fear of future persecution, and therefore, had not met his burden of

establishing his eligibility for asylum. In its assessment/referral memorandum, the

INS specifically found that “[n]o serious repricussions [sic] were taken against

[Wang’s wife] by birth control authorities” after she refused to undergo a

sterilization, and that she had continued to reside at the same address during the

four years following the original request without ever being forcibly sterilized.

In 2002, Wang, who was still in removal proceedings, filed several

documents in support of his asylum application, including an affidavit in which he

stated that he left China because he and his wife were subject to coercive birth

control measures against their will. 

In 2004, Wang appeared before an IJ for a hearing on his asylum

application, and upon questioning by the IJ, Wang’s counsel explained that Wang

was seeking asylum based on a claim that his wife was forced to undergo an
4

abortion, even though this was not the claim in the asylum application. Wang

attempted to explain this inconsistency by testifying that the people who had

prepared his application made a mistake, and that no one had ever read the

application to him before he signed it. 

The IJ denied Wang’s claims for asylum, after making an adverse credibility

determination, finding that Wang failed to present consistent and sufficient

evidence to establish that his wife was forced to undergo an abortion, given that

(1) his asylum application made no mention of an abortion, but instead focused on

the threat of sterilization; (2) he never mentioned an abortion during his initial

airport interview with the INS; and (3) his asylum application provided a name and

date of birth for the second child, and the IJ found that Wang’s explanation for this

was not believable. 

Wang appealed the IJ’s decision to the BIA, and the BIA affirmed without

opinion. 

In his petition for review, Wang argues that his application for asylum,

withholding of removal, and protection under the United Nations Convention

Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment

(“CAT”) should have been granted because (1) the IJ erred by failing to consider

the record as a whole; and (2) he was denied due process when the IJ based the
5

denial of his claim for asylum on inconsistencies between Wang’s testimony and

his initial asylum application. 

When the BIA summarily affirmed the IJ’s decision without an opinion

under 8 C.F.R. § 1003.1(e)(4), the IJ’s decision became the final agency

determination subject to review. See Mendoza v. U.S. Att’y Gen., 327 F.3d 1283,

1284 n.1 (11th Cir. 2003). 

A credibility determination, like other factual findings, is reviewed under the

substantial evidence test, and we “may not substitute [our] judgment for that of the

[IJ] with respect to credibility findings.” D-Muhumed v. U.S. Att’y Gen., 388 F.3d

814, 818 (11th Cir. 2004). “[A]n adverse credibility determination alone may be

sufficient to support the denial of an asylum application,” so long as the IJ offers

“specific, cogent reasons for an adverse credibility finding” and does not overlook

other evidence produced by the asylum applicant. Forgue v. U.S. Att’y Gen., 401

F.3d 1282, 1287 (11th Cir. 2005).

Once an adverse credibility finding is made, the burden is

on the applicant alien to show that the IJ’s credibility

decision was not supported by specific, cogent reasons or

was not based on substantial evidence. A credibility

determination, like any fact finding, may not be

overturned unless the record compels it.

Id. (quotations and citations omitted). 
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Substantial evidence supports the IJ’s conclusion that Wang failed to meet

his burden of proof to establish his eligibility for asylum, and nothing in the record

compels us to reverse this finding. See Adefemi v. Ashcroft, 386 F.3d 1022, 1027

(11th Cir. 2004) (en banc), cert. denied, 125 S.Ct. 2245 (2005). The IJ made an

adverse credibility determination based primarily on two material inconsistencies

between Wang’s asylum application and his testimony at the asylum hearing,

namely whether Wang’s wife was forced to have an abortion and whether Wang

was ever detained and beaten. Because these credibility determinations are

supported by substantial evidence in the record, and because the IJ properly

considered Wang’s corroborating evidence, we affirm the IJ’s denial of asylum and

deny the petition for review as to this issue. See D-Muhumed, 388 F.3d at 818. 

We note that there is no indication in the record that the IJ failed to consider the

entire record, or that Wang was denied a fair hearing. 

As to withholding of removal, an alien is entitled to withholding of removal

under the INA if he or she can “show that his [or her] life or freedom would be

threatened on account of race, religion, nationality, membership in a particular

social group, or political opinion.” Mendoza, 327 F.3d at 1287; see also INA

§ 241(b)(3), 8 U.S.C. § 1231(b)(3). As a general rule, however, if “an applicant is

unable to meet the ‘well-founded fear’ standard for asylum, he is generally
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precluded from qualifying for either asylum or withholding of deportation.” Al

Najjar v. Ashcroft, 257 F.3d 1262, 1292-93 (11th Cir. 2001) (quotation omitted).

Because Wang failed to establish past persecution or a well-founded fear of

persecution sufficient to support his asylum claim, he cannot establish that he is

eligible for withholding of removal under the INA.

Wang also petitions for review of the denial of his claim for protection under

the CAT. Because Wang did not exhaust his administrative remedies with respect

to this claim, we hold that we lack jurisdiction to review this claim, and dismiss the

petition in part. See INA § 242(d)(1), 8 U.S.C. § 1252(d)(1); Fernandez-Bernal v.

Att’y Gen., 257 F.3d 1304, 1317 n.13 (11th Cir. 2001).

PETITION DENIED in part, DISMISSED in part.