NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 11a0219n.06 No. 09-4469 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

Z HI Z ENG CHEN, ) ) Petitioner, ) ON REVI EW FROM THE B OARD ) OF I MMI GRATI ON APPEAL S v. ) ) ERI C H. HOL DER, J R., Attorney Gene ral )

) Respondent. )

Be fore : SUTTON and KE THL EDGE Circuit Judges; and H OOD, Senior D istrict J udg e. * P ER CU RI AM

. Petitioner Z hi Z eng Chen (“Petitioner” ) seeks judicial revie w of a November 20, 2009, decision of the Boa rd of I m m i gra t i o n Appea ls (“B I A”) , which dismiss ed Petitioner’s appea l from the immigra tion judge ’s decision denying his applications for asy lum, withholding of remova l, and pr o te c ti o n u nder the Convention Ag ainst Torture

. Petitioner argues that his due proce ss rig hts have been violated beca use the immigration judge err oneously conclude d that his application for asy lum was untimely and beca use incompetent interpre t at i on during the proce eding befo re the I mmigra tion Court preve nted him from having a full and fair hear ing. He argues, as well, that the decision to deny his applications was not supported by substantial evidenc e beca use the immigra tion judge err oneously conclude d that his testimony was not cre dible and, thus, that his claims were without support. For the re asons which f

ollow, we DENY the re lief re quested in the Petition.

* The Honorable J oseph M. Hood, S enior United States District J udg e for the Eastern District of Kentucky , sitti ng by

desig nation.I. Background

Petitioner is a native and citizen of the People’s Republic of China. He arr ived in the United St at es at or near the Miami I nterna tional Airport on November 27, 2004, without valid entry documents. A cre dible fea r interview was conducte d on Dec ember 9, 2004. During that interview, Petitioner testified, under oath, that he had been mistreated, threa tened, and slapped by members of

a Fa lun Gong g roup of which he was a member. He also testif i ed t h at h e fea

red the Fa lun Gong g roup beca

use they had threa tened to kill him when he tried to distance himself from the g roup afte r he witnes s ed t h em p articipating in activities decla red illega l by the Chinese g overnme nt. At the

same time, Petitioner explained that he fea red that g overnme nt authorities could arr est him beca use he attende d Fa lun Gong meeting s. Chen’s ca se wa s ref err ed to an immigr ation judge in Miami. On Marc h 24, 2005, Petitioner filed a motion to chang e venue to the United States I mmigration Court located in New York, New York, admitted the alleg ations set forth in the Notice to Appea r, and conce ded the char g e of remova bility

. His motion was g rante d on April 11, 2005, and Petitioner appea

red at the New York I mmigration Court on J une 22, 2005. There , he reque sted relief in the form of asy lum, with h o l d i n g o f remova l, and protec tion under the Convention Ag ainst Torture

. He was notified that he should return to the court on Aug ust 24, 2005, with his applications for r elief, or

his applications would be dee med aba ndoned. On Aug ust 12, 2005, Petitioner soug ht to chang e venue to the I mmigration Court in Cleveland, Ohio, and his motion was g rante d on Aug ust 23, 2005. Petitioner appea red there for the first time on November 29, 2006. On Aug ust 1, 2007, Petitioner submitt ed applications for asylum, withholding of removal, and protec tion under the Convention Ag ainst Torture to the I mmigration Court in Cleveland and reque sted an individual hear ing date on his applications. I n his applications, Chen indicated that he was seeking relief based on relig ious grounds, namely his new- found Christian faith. He explained that, since his arr ival in the United States, he had been lear ning about 2Christianity from his uncle and att en d i n g ch u rc h in New York and, later, Ohio. He stated that he

fea red perse cution as a Chri stian in China. He also admitted that he did not tell the truth to the immigra tion office r wh o co n d u cted his cre dible fea r interview, explaining that he told the immigra tion office r what the “snake head,” or human smugg ler, had told him to sa y for fea r that he would be sent ba ck to China. A remova l hear ing was conducte d on Fe bruar y 2 7 , 2 0 0 8 , befor e the United States I mmigration Court in Cleveland with the assis tance of an interpre ter, who provided t ra nslation of the proce eding s in Eng lish into Mandar in Chinese for Petitioner and translation of his response s into Eng lish for the benef

it of the court. During that hear ing, Petitioner testified that, afte r his arr ival in the United States and while living in Cambridg e, Ohio, he would visit his uncle in New York ever y six wee ks. During those visits, his uncle, a Christian, told him about the Bible and took him to the Gra ce Fujinese Church, where service s wer e held in the Fu- zhou dialect. Eventually , his uncle ref err ed him to a churc h in Ohio, but, beca use the service s there wer e in Eng lish, Petitioner decide d to continue attending service s at the Gra ce Fujinese Church. He would trave l to New York two or three times a month by bus on Saturday night, returning to Ohio on Sun d ay night or Monday

. Petitioner’s uncle was unable to testify at the hear ing beca use he was in the hospital a fter brea king his spine. Petitioner confirme d during cross-e x amination that he did not tell the truth during his

cre dible fea

r interview nor could he rec all what rea son he g ave the immigration of fice r for his f

ear of returning to China, even though he estimated his testimony d u ri n g that interview to be “fifty perc ent true, fifty perc ent false.” He admitted that he had never prac ticed Fa lun Gong in China, had

never been harme d or th re at en ed by a member of a Fa lun Gong g roup, and never had a fea r of returningto China due to any prac tice of or

association with Fa lun Gong

.

3Petitioner testified alterna tively that he had forg otten why he came to the United States, that he was sm u ggl ed i n t o t h e United States, and that he came to the United States beca use there is fre edom of relig ion. He also testified that he beg an attending churc h service s on S u n d ay s at the Gra ce Fujian Church once a month in April 2005 and that he attended the churc h 23 and 28 times, respe ctively , in 2006 and 2007. Petitioner submitt ed a letter from the minist er at the Gra ce Fujian Church stating that Petitioner had been attending the Church for Wednesday service s since J une 24, 2007. When questioned about the discrepa ncy with his own testimony conce rning the leng th of time that he had attended the churc h and f o r wh i ch service s he attended during t he week, he explained that there was a mistake beca use he did not attend W ednesda y ser v i ce s and that the date could be explained beca

use he ha d not reg istered or signe d in at the chur ch whe n he first a ttended. During the hear ing, Petitioner testified that, prior to becoming a Christian, he was a Taoist. When asked if action had ever been taken aga i n s t h im by the C hinese authorities for being Taoist

or prac ticing Taoism, he testified that he was arr ested in J uly 1998 and detained for two months for prac ticing Taoism beca

use the police said that Taoism was a form of superstition. The incident was not listed on his asy lum application. Petitioner testified that he had not discussed his Taoism or the 1998 incident in his application for asy lum beca use he “didn’t know [he] should write it down.” [AR at 122.] Petitioner also testified that a differ ent attorney than the one repr esenting him at the hear ing had filed an asy lum application for him sometime in 2005, distinct from the 2007 application in the

rec ord. He did not have a copy of the purpo rt ed 2005 application. Nonethele ss, Petitioner’s attorney , Stuart Altman, stated to the court that his client was mistaken and that he had, in fac t, sent

an I -589 asy lum application on November 14, 2005, to the I mmigra tion Court in Cleveland. Altman

was prepa red to prese nt an overnig ht mailing rec eipt to demonstrate that he had mailed an I -589 to the court’s addre ss at that time. Altman explained that it was not delivere d beca use the opening of 4the I mmigration Court was delay ed and that the C l ev eland court did not ultimately open it s doors

until S eptember

2006. At the concl u s i o n o f the hear ing, the immigration judge found Petitioner remova ble and d en ied Petitioner’s applications for asylum, withholding of remova l, and protec tion under t h e Convention Ag ainst Torture

. As g rounds for denying his applications, the i m migr ation judge deter mined that Petitioner’s application for asylum contained in the rec ord was u n t i m ely beca use there was no evidenc e of any application for asylum fil ed within one y ear afte r his arr ival in the United S t ates, as required by 8 U.S.C. § 1158(a) (2)( B)

. He was not persua ded that any filing had even be en attempted beca use, not withstanding Altman’s eff orts to introduce a

n overnig ht mailing

rec eipt as evidenc e of a timely filed application, Petitioner insisted that someone else had submitt ed that document, which was not available

. The immigratio n j u d ge continued, stating that the application for asy lum would have been denied ev en if it had been t imely filed because there was

no persua sive evidenc e that he had experience d past perse cution or t hat he had a subjectively rea l and objectively rea sonable fea r of future perse cution on acc ount of relig ion. The immigration judge stated that he believed Petitioner’s testimony that he had been subject to past perse cution as a Taoist to be fa brica ted and that he did not believe that Petitioner was an actively prac ticing Christian, his testimony to the contra

ry notwithstanding, beca

use he found Petitioner’s testimony on the whole to be incr edible. The im migr ation judge ’s credibil i t y d ec i sion turned on the fact that he found Petitioner to be “not believable in any respe ct” beca use of (1) his previously demonstrated willingness to lie under oath, citi ng the false but “ela borate tale of perse cution” which Plainti ff ha d cra fted in the credible fea r interview, (2) his de meanor , (3) the inconsistency of Petitioner’s statements about attending a churc h on Sunday s in New York almost half the wee ks in a g iven y ear over the course of near ly three y ear s with a letter from his minist er stating that Petitioner had attended on Wednesday s for less than 5a y ear , and (4) his failure to mention his claim of a past perse cution on the basis of his former Taoist

faith in his asy lum appli cation when the claim befor e the I mmigration Court was premised on a purported f

ear of per secution in China beca use of r elig ion. As the P etitioner had failed to meet the rela tively low threshhold re quired to prove that he

was a re fu gee for the purpose of obtaining asylum, the immigra tion judge conclude d that he had

nece ssarily failed to meet the highe r standard require d to prove a claim for withholding of remova l. The immigra tion judge also conclude d that Petitioner had prese nted no evidenc e to sug g est that he would more likely than not be subject to torture if he returne d to the People’s Republic of China and denied his application for protec tion under the Convention Ag ainst Torture on those g rounds. On Marc h 12, 2008, Petitioner filed a Notice of Appea l to the BIA; he filed a supplemental brief on May 13, 2008. I n those filings, Petitioner argued that the immigration judge err ed when he found P eti tioner incre dible and that substantial evidenc e did not support the immigration judge ’s adverse cre dibilit y finding

. Specifica lly , he argued that his untruthfulness at the cre d i b l e fe ar interview was wrong fully considere d beca use it did not touc h on or enha nce his actua l a

pplication for asy lum, that his demea nor might have appea

red varie d during the hear ing beca use of translation

err ors, and that he had prese nted evidenc e to corr oborate his c laim that he is a prac ticing Christian

as well as adequa

tely explained the inconsistency betwee n his testimony and the minist er’ s letter and the omission of his 1998 detention in China from his applicati o n . He arg ued, as well, that the immigra tion judge wrong ly denied his application for protec tion und er t h e Convention Ag ainst Torture beca

use the Depa

rtment of State Rep o rt for China, submitt ed to the court, showed that Petitioner would more likely than not be torture d upon returning to China. He arg ued that he w as denied due proce ss by virtue of the Cleveland I mmigration Court’s d el ay ed opening , which Petitioner claimed “may have been the rea son” that his application was untimely

. He also claimed that there was evidenc e available (the overnig ht mailing rec eipt) to demonstrate that an application 6was timely mailed, and that his counsel failed to provide the rec eipt ear lier beca use he did not know that the application had not been r ece ived. The BI A i ssued i ts decision, di smissi ng Petitioner’s appea l , o n No v em b er 20, 2009. This appea l followed. II. Jurisdi ction As a g ener al matter, we have jurisdiction to revie w the BIA’s d ec i s i on, a final ag ency decision under

8 C.F.R. § 1241.1, with respec t to Petit ioner’s a pplication for a sy lum, withholdi ng of remova l, and withholding of remova l under the Convention Ag ainst Torture pursuant to 8 U.S.C. § 1252(a) (1). Thus, Petitioner’s appea l is, as a g ener al m atter, properly befor e thi s Court, and we will consider his arguments that the immigra tion judge ’s c r e d ibility deter mination was not supported by substantial evidence in the rec ord. We lack jurisdiction, howeve r, to review a d et ermination that an asy lum application was untimely wher e an appea l seeks revie w of discretionar y or fac tual questions, while we may consider the i ssue of timeliness where constitutional claims or matters of statutory construction ar e raised. See 8 U.S.C. § 1158(a) (2)( B) , (a) (3); Almuhtaseb v. Gonzale s , 453 F.3d 743, 748 (6th Cir. 2006)

. Petit i o n er argue s that he was denied proce dural due proce ss with respe ct to the decision on the timeliness of his asy

lum application beca

use he “could not file [hi s] application in court in a timely

manner .” To preva il on a due-pr ocess challeng e, Petitioner must demonstrate that “the proce eding

was so fundame ntally unfair” that he was “pre vented from rea sonably prese nting his case .” Hassan

v. Gonzales , 403 F.3d 429, 436 (6th Cir. 2005) (interna l quot at i on marks omitted). He must also demonstrate “that the alleg ed violation aff ecte d the outcome of the proce eding s; we will not simply presume prejudice .” Gishta v. Gonzales , 404 F.3d 972, 979 (6th Cir. 2005). Petitioner has not

asser ted that h e wa s ac t u ally denied a full and fair hear ing on the issue of the timeliness of his application or even the merits of his application, for that matter. I n fac t, the immigration judge fully 7articula ted the basis for his decis i o n t h at Petitioner’s asylum application was untimely and then

stated, in detail, alternative g rounds for denying his asylum application. As the immigration judge explained, Petiti oner’ s “application for asy lum would be denied even if it had been t imely filed.” Petitioner has not demonstrated prejudice , so we will consider Petitioner’s argument conce rning the timeliness of his application no further

. Fur ther, we m ay only revie w those issues that Petitioner has exhausted throug h the administrative reme dies available to him. 8 U.S.C. § 1252(d)( 1); Ramani v. Ashcroft , 378 F.3d 554, 558 (6th Cir. 2004). Thus, we have no jurisdiction to consider issues that wer e not prese nted to the BIA, including Petitioner’s contention that the immigration judge err ed when he failed to take into

acc ount letters written by Petitioner’s fathe r and uncle which he offe rs to support the contention that h e wa s an active prac titioner of the Christian faith. Nor do we have jurisdiction to consi d er Petitioner’s claim that incompetent translation during the proce eding befor e the immigration judge deprive d him of d u e proce ss. Whil e “[t] he function of an interpre ter is an important one . . . aff ect[ing] a constitutional rig ht,” Gonzales v. Zurbrick , 45 F.2d 934, 937 (6th Cir. 1930), “an alien must d em o n s t ra t e that a constitutional err or cause d actua l prejudice ; i.e., that the err or materia lly aff ecte d the outcome of the alien’s case .” Al-Ghorbani v. Holder , 585 F.3d 980, 992 (6th Cir. 2009) (citing Mapouya v. Gonzales , 487 F.3d 396, 416 (6th Cir. 2007)). Be fore the BI A, Petitioner raised only a “g ener alized” claim that t ra n s l ation problems may have contributed to the immigra tion judge ’s adve rs e cr edibility finding without identify ing how he was prejudice d by any discrete instances of inadequate translation. Since Petitioner did not proper ly prese nt and exhaust this issue befor e the B I A, we ha

ve no jurisdiction to consider the issue. Finally , “[w]here, as here , the [BI A] adopts and aff irms the immigra

tion judge ' s opinion, but writes its own opinion explaining the rea sons for its decision, we revie w both opinions.” Abdulahad

v. Holder , 581 F.3d 290, 294 (6th Cir. 2009) (citing Zoarab v. Mukase y, 524 F.3d 777, 780 (6th Cir. 82008)); see also Ceraj v. Mukase y , 511 F.3d 583, 588 (6th Cir. 2007) (citing Gilaj v. Gonzales , 408 F.3d 275, 283 (6th Cir. 2005) ) (" Be cause the BIA adopted the [i mmigration judg e]'s decision with additional commentar

y , we revie w the decision of the [i mmigration judge ], as supplemented by the BIA, as the final administrative order .")

. Respondent argues we may not rea ch the issue of whether the i mmigra

tion judge err oneously relied on Petitioner’s demea nor t o rea ch an adver se credibility deter mination beca

use the BI A failed to expressly addre ss it. This argument lacks merit beca use we revie w both decisions. III. Stand ard of Review The ag ency decision must be upheld if it is supported by substantial evidenc e in the rec ord. INS v. Eli as-Zacarias , 502 U.S. 478, 481 (1992); Y u v. Ashcroft , 364 F.3d 700, 702-703 (6 t h C i r. 2004). Administrative finding s of fac t are conclusive unless “any rea sonable adjudicator would be compelled to conclude to the contra ry .” 8 U.S.C. § 1252(b)( 4)(B ). “This is a defe rential standard: A revie wing court should not reve rse ‘simply beca use it is convince d that it would have decide d the

case differ ently .’” Sylla v. INS , 388 F.3d 924, 925 (6th Cir. 2004) ( q u o t i n g K lawit ter v. INS , 970 F.2d 149, 151-52 (6th Cir. 1992) ). The mere “possibility of draw ing two inconsistent c onclusions from the ev i d ence does not preve nt an administrative ag ency ’s finding from being supported by

s u b s t anti al evidenc e.” Consolo v. Fede ral Maritime Comm’n , 383 U.S. 607, 620 (1996) (citin g NLRB v. Nevada Consol. Copper Corp. 316 U.S. 105, 106 (1942); Keele Hair & Scalp Specialists, Inc. v . FTC , 275 F.2d 18, 21 ( 5th Cir. 1960)). We revie w claims of the denial of due proce ss de novo . Mikhailev itch v. INS , 146 F.3d 384, 391 (6th Cir. 1998) (c iting Ive zaj v. INS , 84 F.3d 215, 220 ( 1996)). IV. Discussion Petitioner argues that the immigra tion judge err ed in denying his applications for asy lum, withholding of remova l, and protec tion under the Convention Ag ainst Torture and that, in turn, the 9BIA err ed in dismiss ing his appea l of that decision. Specifica lly , he maintains that the immigra tion

judge ’s deter

mination that Petitioner was not cre dible and, thus, that h is claims wer e not cre dible was not supported by substantial evidenc e. Fur ther, he argues that he was denied due proce ss, i.e., a full and fair hear ing, on his application for withholdi n g o f r e mo val under the Convention Ag ainst Torture beca u s e t he immigra tion judge failed to addre ss the Interna tional Religious Fr eedom Report for China. For the rea sons which follow, we find that Petitioner’s arguments are without merit and will aff irm the dec ision of the BI A. A. Cre dib ility Dete rm ination by Imm igration Jud ge The decision by the i mmigration judge to deny Petitioner’s applica tions was driven by the conclusion that Petitioner was not a cre dible witness. I n al l cases wher e asylum, withholding of

remova l, or protec tion under the Co n v en t i o n Ag ainst Torture are reque sted, cre dibilit y deter minations are critica l beca use aliens must car

ry the burden of proving their elig ibilit y for relief

. To qualify for a discretionar y g rant of asylum, an alien must demonstrate that he is a ref ug ee within the meaning of 8 U.S.C. § 1101(a) (42)( A). 8 U.S.C. § 1158(b)( 1)(A)

. A “re fug ee” is an alien who i s unwilling or unable to return to his or her home country “bec ause of pers ec u t i o n o r a well founded fe ar of perse cution on acc ount of rac e, relig ion, nationality , membership in a particula r social g roup, or political opinion.” 8 U.S.C. § 1101(a) (42)( A). The alien has the burden of proving elig ibilit y for asy lum. 8 U.S.C. § 1158(b)( 1)(B )(i); 8 C.F.R. § 1208.13(a) ; Ndrecaj v. Mukase y , 522 F.3d 667, 674 (6th Cir. 2008). The applicant’ s testimony may be sufficie nt to sustain his burden witho u t co rr o boration, but only if he satisfies the trier of fac t that his testimony is cre dible, persua sive, and ref

ers to specific fac ts sufficie nt to d em o n s t rate that he is a ref ug ee. 8 U.S.C. § 1158(b)( 1)(B )(ii). Wit hholding of remova l, under 8 U.S.C. § 1231(b)( 3), is closely rela ted to, but distinct from, asy lum. See Singh v. Ashcroft , 398 F.3d 3 9 6 , 401 (6th Cir. 2005). To preva il on a withholding 10application, an alien must establish a “cle ar probability ” that his life or fre edom would be threatened

in the proposed country of remova l beca use of one of the protec ted g rounds. Pilica v. Ashcroft , 388 F.3d 941, 951 (6th Cir. 2004) (citing INS v. Stevic , 467 U.S. 407, 413 (1984); Mikh a ilevitch , 146 F.3d at 3 9 1 ). “C l ea r probability ” means that it is “more likely than not” that an alien would be

s u b ject to perse cution, and the standard is, thus, more stringent than the burden of pro o f s t an d ar d applied in asylum cases. See I NS v. Cardoza-Fonseca , 480 U.S. 421, 430-32 (1987). Finally , to establish elig ibilit y for protec tion under the Convention Ag ainst Torture , an alien must demonstrate that it is “more likely than not that he or she would be tortured if remove d to the proposed country of remova l.” 8 C.F.R. § 1208.16(c) (2); Ramaj v. Gonzales , 466 F.3d 520, 532 (6th Cir. 2006). “The term ‘torture ’ only descr ibes ‘an extreme form of crue l and inhuman trea tment and does not include le s s er forms of cruel, i nhuman or deg rading trea tment or puni shment that do not amount to torture.’ ” Almuhtaseb , 453 F.3d at 751 (quoting 8 C.F.R. § 1208.18(a) (2)) ; see also Berri

v. Gonzales , 468 F.3d 390, 398 (6th Cir. 2006). The torture must be “inflicted by or at the instigation of or with the consent or acquie scenc e of a public offic i al or other person acting in an officia l capa city .” 8 C.F.R. § 1208.18(a )(1)

. Credibility deter

minations are considere d finding s of fac t and are revie wed under the defe rential substantial evidenc e s t an d ar d

. Y u , 364 F.3d at 703. We may not disturb an adver se

cre dibilit y

deter mination unless the evidence “not only supports a contra

ry conclusion, but indeed compe ls it.” Klawi tter , 970 F.2d at 152 (emphasis in orig inal). I n deter mining whether an alien’s clai m is cre dible, an I mmigra tion judge is authorized to consider a

number of f

actor s, including: the demea

nor . . . of the applicant or wi t n es s , . . . the consistency betwee n the applicant' s or witness' s written and oral statements (whe never made and whether or not under oath, and considering the circ umstances under which the statements wer e made) , the internal consistency of eac h such statement, the consistency of such statements with other evidenc e of rec ord (including the repor ts of the Depa

rtment of 11State on country conditions), and any inacc urac ies or falsehoods in such statements,

without regard to whether an incon s i s tency , inaccurac

y, or falsehood goes to the heart of the applicant's claim , or any other re levant fa ctor. 8 U.S.C. § 1158(b)( 1)(B )(iii) (empha sis added)

. “The re is no presumption of cre dibilit y . . . . ” Id. I n the instant matter, the immigra tion judge conclude d that Petitioner was not a cre dible witness beca

use of his demea

nor, beca use he had demonstrated a willingness to lie under oath during his cre dible fea

r interview, beca

use of incons istencies betwee n Petitioner’s testimony and a letter from the minist er from Petitioner’s churc h conce rning when Petitioner beg an to attend service s there and which service s he attended, and b ec au s e P etitioner failed to mention a purported two month detention by the Chinese authorities on acc ount of his prior relig ious aff iliation (Taoist) some y ear s befor e in his applications, reve aling it only during the hear ing befor e the immigration judge

. Once t h e immigra tion judge conclude d that Petitioner was “not a believable witness” and beca use Petitioner was the only witness, the immigra tion judge found that there was simpl y no believable

ev i d en ce p resented to demonstrate that Petitioner was a prac ticing Christian of long or short

standing , that he had experience d past perse cution or had a well-founde d fea r of future perse cution

on acc ount of his relig ion at the hands of Chinese authorities, or that he would more likely than not be subjected to torture if he returne d to the People’s Republic of China. [AR at 55, 58.] Thus, the immigra tion judge conclude d Petitioner’s application would have been d enied even if it had been timely filed. Petitioner first argues that the immigra tion judge err oneously conclude d that Petitioner was not cre dible beca

use the immigra tion judge should never hav e co nsidered Petitioner’s falsehoods during the cre dible fea

r interview, the inconsistencies betwee n his testimon y a n d th e mi n is te r ’ s letter, and his omission from his applications of the purporte d d et en t i on by Chinese authorities beca use they did not enhanc e his claim of perse cution, i.e., did not “g et to the hear t of the applicant’ s claims.” The “hea rt of the claim” rule, which Petitioner invokes, citing Chen v. Gonzales , 447 F.3d 468, 472 12(6th Cir. 2006) (addr essing applications for a sy lum a nd withholding of remova l f iled prior to Ma

y 11, 2005), was abolished by statute for case s like Petitioner’s which wer e filed on or afte r May 11, 2005. See 8 U.S.C. § 1158(b)( 1)(B )(iii). See also El-Moussa v. Holder , 569 F.3d 250, 256 (6th Cir. 2009) (re cog nizi ng that REAL I D Act abrog ated “hea rt of the claim” doctrine for case s filed on or afte r May 11, 2005, and made other signific ant chang es to the Court’s revie w of adver se cre dibilit y finding s). Be cause the immigra tion judge was clea rly authorized, under 8 U.S.C. 1158(b)( 1)(B )(iii), to consider these falsehoods, inconsistencies, and omissions in rea ching a finding on cre dibilit y , it

was not err or for him to do so simply beca use these falsehoods, inconsistencies, and omissions may not have gone direc tly to the basis of P etitioner’s a pplication for a sy lum, withholdi ng of re moval, and prote ction from torture

. Even so, Petitioner arg

ues that the im

mi g r a ti o n ju d g e mi scontrued the import of his falsehood and his o m i s s i o n i n his application and that the i mmigration judge ’s conclusion that there was an inconsistency was not supported by substantial evidenc e. Effe ctively , he arg ues that it was

rea sonable for him to spin the elabor ate tale about the prac tice of Fa lun Gong that he told during his

cre dible fea

r interview

beca use the “ snakehe ad,” or

human smug g ler, told him to do so and that it

was rea sonable for him to omit past perse cution as a Taoist beca use he was now reque sting relief as

a Christian. H e ar g ues, as we ll, that his st atements a bout when he beg an to a

ttend churc h in N ew York prior to reg istering with the churc h wer e not inco n s i s t en t wi th the letter obtained from the minist er there which g ave a much later date “ acc ording to [ the] church r eg istration book” and that any discrepa

ncy based on which day of the wee k he attended churc h was minor. We have considere d these arguments b u t ca n not say that the evidenc e “not only supports a contra ry conclusion, but indeed compe ls it.” Klawi tter , 970 F.2d at 152 (emphasis in orig inal). Finally , Petitioner ar g ues that the immigration judge err oneously relied on Petitioner’s demea nor to rea ch an adver se cre dibilit y deter mination beca

use the immigra

tion judge failed to 13articula te specific examples of Pet i t i oner’ s demea nor in announcing a decision. Whil e the immigra tion judge questioned the cre dibilit y of the Petit i o n er fo r a number of rea sons, the immigra tion judge included Petitioner’s “deme anor as he testified” beca use “[h] is demea

nor on direc t examination was much differ ent than that on cross-e x amination” without further elabor ation. [AR at 54.] On revie w, the BIA reje cted Petitioner’s contention that he was a cre dible witness and conclude d that the immigra tion judge had not clea rly err ed with respe ct to his assessm ent of Petitioner’s cre dibilit y . The BI A’s decision was, howeve r, founded on the other fac tors relied upon by the immigra tion judge , i.e., prior falsehoods, inconsistencies betwee n Petitioner’s testimony and other evidenc e, including his chang ing testimony during the hear ing, as well as the omission of the purported prior detention in his homeland from his application. The BIA omitted any discussion of Petitioner’s demea

nor. Whil e an immigration judge is re q u i red to g ive specific rea sons for any adver se cre dibilit y deter

mination, Abdulahad , 581 F.3d at 294-95 (citing Koulibal y v. Mukase

y , 541 F.3d 613, 620 ( 6th Cir. 2008)), we find ourselves in ag ree ment with the BI A t hat t he immigr ation judge ’s adver se cre dibilit y deter mi n at i o n was supported by substantial evidenc e even when consideration of Petiti oner’ s demea nor is omitted from the ca lculus of cr edibility

. I n this respe ct, the matter at hand is easily distinguishable from that befor e the Ninth Circuit Court of Appea ls in Arulampalam v. Ashcroft , 353 F.3d 679 (9th Cir. 2003), upon which Petitioner relies to suppor

t his position. I n Arulampalam , the immigration judge made an adver se cre dibilit y deter mination based larg ely on “aspe cts of [t he petitioner' s] demea nor and method of answe ring questions” despite having found “no major inconsistencies in [t he petitioner' s] t est imony ” and without specific ally or cog ently ref err ing to any specific aspec t of the petitioner’s demea nor. Id

. at 685-86. By contra st, both the immigra tion judge and the BIA focuse d their attention in this matter

on Petitioner’s prior untruthfulness, inconsistencies betwee n Petitioner’s t es timony and other evidenc e prese nted, as well as the failure to mention a prior detention by the Chinese authorities on 14his applications. I t may have been err or for the immigration judge to rely on Petitioner’s demea nor,

as that term is ty

pically understood, as a basis for an adv er se cre dibilit y deter mination without articula ting his spec ific conc erns a bout it. Nonetheless, we cannot say that the adve rse c redibility deter mination was not supported by substantial evidenc e in the rec ord, nor can we say that a contra ry conclusion would be c ompelled if Petitioner’s deme anor is not consider ed. Acc ording ly , for all of the rea sons above, the adver se cre dibilit y determination below is upheld. B. No Denial of Du e P roce ss Finally , Petitioner argues that he was denied due proce ss beca use “[t] he I mmigra

tion J udg e did not take into separ ate considera t i o n t h e P eti tioner’s claim under the Convention Ag ainst Torture .” Petitioner states that the I nterna tional Religious Fr eedom Report for China “cle arly shows there is torture of Christian relig ious adher ents in China.” That m ay be so. But the immigra tion judge did not believe that Petitioner was a prac ticing Christian. We have aff irmed the immigra tion judge ’s adver se cre dibilit y finding , and, afte r revie wing the rec ord, we are not compelled to conclude that Petitioner is a prac ticing Christian or that he will likely be subject to torture if he is returne d to China. Acc ording ly , we de ny his petition for relief

on these g rounds, as we ll. V. CONCLUSION For all of the re asons set for

th above, we DENY the re lief re quested in the Petition.

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