FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JUNE 9, 2010

JOHN LEY

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 09-15962

Non-Argument Calendar

________________________

Agency No. A098-863-051

SHENGDI LIN,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(June 9, 2010)

Before DUBINA, Chief Judge, CARNES and ANDERSON, Circuit Judges.

PER CURIAM:

Petitioner Shengdi Lin, a citizen and native of China, seeks review of the
decision of the Board of Immigration Appeal (“BIA”) affirming the Immigration

Judge’s (“IJ”) order denying Lin’s application for asylum, withholding of removal

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

Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading

Treatment or Punishment (“CAT”), 8 U.S.C. §§ 1158, 1231, 8 C.F.R. § 208.16(c).

On review, Lin argues that “[t]he Agency’s adverse credibility finding seems

as simple as it is conclusory: Lin must be incredible because he amended his

asylum application after the former [A]ttorney [G]eneral’s decision in Matter of

J-S-, 24 I&N Dec. 520 (AG 2008).” Lin contends that Matter of J-S-, which was

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decided after his initial application but before his amended application, invalidated

his initial claims, but he does not explain why the case invalidated his initial

claims. In his initial application, Lin only mentioned his wife’s forced abortion

and sterilization and the fine they received. Lin seems to contend that the agency

erred because its adverse credibility finding was based only on his initial asylum

application which differed significantly from his amended asylum application. Lin

argues that the agency failed to cite to any specific discrepancies or implausibilities

as to why his amended claim should be disbelieved, other than that his original

application and documents in support failed to mention his detention, his beating,

In Matter of J-S, the Attorney General overruled the BIA’s prior holding that the spouse 1

of a person who has been physically subjected to a forced abortion or sterilization procedure is

per se entitled to refugee status.

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his required attendance at a “birth control study session,” and his potential arrest.

Lin argues that he left out events from his original application because the person

who helped him prepare the application told him not to include his own

persecutory experiences because his wife’s forced abortion was more serious.

Next, Lin argues that his amended submissions were timely because: (1) his

additional submissions were not made on the eve of his removal hearing; and

(2) he was without help of counsel during most of the proceedings. Finally, Lin

argues that a reasonable factfinder would find that he had a reasonable fear of

future persecution, and it was more likely than not that he would be persecuted or

tortured if he returned to China.

“We review only the [BIA]’s decision, except to the extent that [the BIA]

expressly adopts the IJ’s opinion” or reasoning. Al Najjar v. Ashcroft, 257 F.3d

1262, 1284 (11th Cir. 2001). Here, because the BIA issued its own opinion and

did not expressly adopt the IJ’s opinion or reasoning, we review only the BIA’s

decision. “We lack jurisdiction to consider a claim raised in a petition for review

unless the petitioner has exhausted his administrative remedies” with respect to

that claim. Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir.

2006) (citing 8 U.S.C. § 1252(d)(1)). In addition, when an appellant fails to offer

argument on an issue, or includes only a passing reference to an issue, such an

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issue will be deemed abandoned. Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226,

1228 n.2 (11th Cir. 2005).

We review credibility determinations under the substantial evidence test.

Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1230-31 (11th Cir. 2006). Under the

substantial evidence test, 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 1284 (internal quotation marks omitted). The

BIA’s credibility determinations “can be reversed only if the evidence ‘compels’ a

reasonable fact finder to find otherwise.” Chen, 463 F.3d at 1230-31 (internal

quotation marks omitted).

“To be eligible for asylum, the applicant bears the burden of proving

statutory refugee status.” Id. at 1231; 8 C.F.R. § 208.13(a). “That is, the alien

must, with specific and credible evidence, establish (1) past persecution on account

of race, religion, nationality, membership in a particular social group, or political

opinion; or (2) a well-founded fear of future persecution on account of a

statutorily-protected ground.” Chen, 463 F.3d at 1231. When a petitioner is

unable to meet the standard of proof for asylum, he is generally precluded from

qualifying for withholding of removal or for relief under the CAT. Al Najjar, 257

F.3d at 1292-93, 1304.

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The BIA must make a “clean” determination of credibility. See Yang v. U.S.

Att’y Gen., 418 F.3d 1198, 1201 (11th Cir. 2005) (discussing IJ’s credibility

determination). “The [BIA] must also offer specific, cogent reasons for an adverse

credibility finding.” 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 [BIA’s] credibility decision was not supported by ‘specific,

cogent reasons’ or was not based on substantial evidence.” Id. (internal quotation

marks omitted).

If credible, an alien’s testimony may be sufficient, without corroboration, to

sustain his burden of proof in establishing his eligibility for relief from removal.

Id. “Conversely, an adverse credibility determination alone may be sufficient to

support the denial of an asylum application.” Ruiz v. U.S. Att’y Gen., 440 F.3d

1247, 1255 (11th Cir. 2006) (internal quotation marks omitted). Regardless, “an

adverse credibility determination does not alleviate the . . . duty to consider other

evidence produced by an asylum applicant.” Forgue, 401 F.3d at 1287.

“Indications of reliable testimony include consistency on direct examination,

consistency with the written application, and the absence of embellishments.”

Ruiz, 440 F.3d at 1255.

Based on our review of the record, we conclude that substantial evidence

supports the BIA’s adverse credibility determination. Because the remaining

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evidence in the record does not compel a reversal of the BIA’s decision, the BIA

properly affirmed the IJ’s decision. Furthermore, Lin has abandoned his challenge

to the BIA’s finding that the IJ did not ignore any of the evidence submitted with

the amended application. Sepulveda, 401 F.3d at 1228 n.2. Finally, because Lin

has not exhausted his claim that the IJ legally erred in allegedly finding that any

alien who amends his application after a change in the law must necessarily be

lying, we lack jurisdiction to consider the claim. Amaya-Artunduaga, 463 F.3d

at 1250. Accordingly, we deny the petition in part and dismiss it in part.

PETITION DENIED in part and DISMISSED in part.

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