FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

AUGUST 24, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 09-10310

Non-Argument Calendar

________________________

Agency No. A096-051-929

XIUMIN LIN,

a.k.a. Xiu Min Lin,

a.k.a. Song Tian Jiu Mei,

Petitioner-Appellant,

versus

U.S. ATTORNEY GENERAL,

Respondent-Appellee.

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(August 24, 2009)

Before BIRCH, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:
Xiumin Lin (“Lin”) petitions for review of the Board of Immigration

Appeals’ (“BIA”) order denying asylum and withholding of removal under the

Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1158, 1231(b)(3), and relief

under the United Nations Convention Against Torture and Other Cruel, Inhuman,

or Degrading Treatment or Punishment (“CAT”), 8 C.F.R. § 208.16(c). The BIA

based its decision on the adverse credibility finding of the Immigration Judge

(“IJ”). We find substantial evidence to support the adverse credibility

determination and therefore DENY the petition for review.

I. BACKGROUND

In August 2002, Lin filed an application for asylum and withholding of

removal on grounds that she was persecuted in China for practicing Christianity.

Administrative Record [“AR”] at 393, 397, 410-11. Her application stated that she

was a native and citizen of China, and that she entered the United States in Los

Angeles on 26 February 2002 using a false passport. Id. at 393. On 4 October

2002, the United States Immigration and Naturalization Service issued a notice to

appear (“NTA”), charging Lin with entering the United States at an unknown place

on an unknown date without being admitted or paroled after inspection by an

immigration officer. Id. at 434. Accordingly, the NTA stated that Lin was an alien

subject to removability pursuant to INA § 212(a)(6)(A)(i). Id. at 434-35.

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Lin conceded removability at an initial hearing in October 2002. Id. at 80-

81. She stated that she sought asylum, withholding of removal, and CAT relief.

Id. at 81. When asked what her entry date was, Lin responded 10 February 2002.

Id.

The Forensic Document Laboratory (“FDL”) of the United States

Department of Homeland Security subsequently examined Lin’s documents

submitted with her asylum application. Id. at 346. The FDL’s September 2004

report concluded that: (1) Lin’s Chinese resident identification card was

counterfeit because it lacked security features and was produced in an unusual

manner; (2) Lin’s Chinese birth certificate could not be authenticated because the

FDL lacked reference items, such as wet and dry seal impressions or printer

samples, for comparison; (3) Lin’s employee identification card likewise could not

be authenticated because the FDL could not compare it to handwriting or seal

examples from local employers, although the toner technology used to produce

Lin’s card indicated that it may not be genuine; (4) the employee payroll records

that she submitted were “unexpectedly consistent with each other,” indicating that

the documents were prepared contemporaneously, rather than over the stated

period of time; and (5) the overall appearance and writing movements of Lin’s

signature on her employee records differed from her signature on her asylum

application. Id.

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A removal hearing occurred in March 2007. Id. at 165. Lin testified that

she was born in February 1977 and is a single mother. Id. at 171. After a friend

introduced her to Christianity in Christmas of 2000, Lin began attending weekly

gatherings of a private church consisting of less than ten individuals. Id. at 172-73.

The church was not legally registered in China. Id. at 174, 199. Lin became

baptized in February 2001. Id. at 173. On 9 December 2001, the police arrested

Lin while she was attending church at her friend’s home and confiscated some

religious materials. Id. at 175. Two individuals questioned her at the police station

as to whether Lin knew it was illegal to gather without permission. Id. at 176. Lin

responded that she was entitled to religious freedom. Id. One of the officers then

allegedly hit Lin’s arm with his baton. Id. Lin screamed in pain. Id. According to

Lin, the second police officer grabbed Lin’s hair, slapped her face twice, hit her

nose, and threatened to put the baton on Lin’s mouth if she continued to scream.

Id. at 177. Lin stated that she was subjected to an hour of questioning and then

detained for ten days during which she was interrogated twice more. Id.

Lin testified that she was released after paying a fine. Id. Authorities

allegedly forbid her from leaving her residential area and ordered her to report

weekly. Id. Lin said she was subsequently fired from her job as a teller at a

shipping company. Id. at 178. She left China on 26 February 2002 “[b]ecause if I

stayed in China I had to report myself each week and I was not allowed to leave

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my residential area and I did not have freedom. . . .” Id. Lin believed that she

would be arrested and fined if she returned to China. Id. at 179.

On cross-examination, Lin admitted that a friend helped her obtain a fake

Japanese passport. Id. at 184. Lin initially stated her passport picture was taken

when she was home on 20 February 2002. Id. at 185. Upon further questioning,

she stated she took the picture in a studio and received the Japanese passport when

she went to Hong Kong. Id. at 188-89. Lin maintained that she and her friend

traveled to Hong Kong “in a very normal procedure as tourist[s]” using only a

travel permit in her own name. Id. at 188, 202. When questioned as to why she

was not arrested upon leaving her residential area, as she previously claimed she

would be, Lin responded that she went to see her friend “secretly.” Id. at 190. Lin

said she flew to Los Angeles directly from Hong Kong posing as the daughter of

an older man whom her friend had contacted. Id. at 185-86, 190. Lin testified that

she showed her fake passport when she entered the United States, but the Japanese

man pretending to be her father then took her passport away. Id. at 190, 202.

With respect to her Chinese identification card, Lin stated that her father

mailed it to her from China in September 2002. Id. at 207. She recognized the

card as the one she had used in China since the age of fourteen based on the card’s

number and her picture. Id. at 192-93. Lin at first claimed that the card was

reissued to her when she turned twenty-four in 2001. Id. at 195-96. Later, the

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court questioned her as to why her identification card was dated 1998. Id. at 201.

Lin stated that she would normally have had to wait until age twenty-four to renew

her card but the government permitted renewals on a nationwide scale in 1998, so

she renewed hers in advance at that time. Id.

Lin further affirmed that she had signed both her asylum application and the

wage forms. Id. at 180-81, 198, 205. The wage forms reflect that Lin was

employed by the Min Feng Ship Company from August through October 2001. Id.

at 377-382. Lin testified that her father secured the original wage documents from

the accountant of the shipping company. Id. at 198. When asked as to how she

could secure the original records when they are needed for an audit report, Lin

explained that the audit was conducted annually, which meant the 2001 records

were old documents kept on file. Id. at 210.

The IJ denied Lin’s applications for asylum, withholding of removal, and

CAT relief, and ordered her removed to China. Id. at 76-77. After considering

Lin’s demeanor and the “candor, responsiveness, rationality, internal consistency

and inherent persuasiveness of [her] testimony,” the IJ determined that Lin was not

credible. Id. at 70-71. In support of this adverse credibility finding, the IJ cited the

FDL’s conclusion that Lin’s documents were fraudulent or could not be

authenticated. Id. at 71-73. The IJ also noted several inconsistencies in Lin’s

testimony: (1) Lin was able to use her own travel documents to visit Hong Kong

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even though she was supposedly under close surveillance; (2) Lin first stated that

her photograph for the Japanese passport was taken at home but later stated that it

was taken at a studio in Hong Kong; and (3) she gave varying dates for when her

Chinese identification card was issued. Id. at 73. The IJ further questioned Lin’s

explanation as to how she obtained original wage records from a company that was

subject to audit on a yearly basis. Id. at 74. Beyond these discrepancies, the IJ

found that Lin’s testimony “appeared to be by rote, [and] she appeared to have

complete command of such things as dates, but somewhat incomplete command of

other specifics” of her claim. Id. at 75. Accordingly, the IJ determined that Lin

had knowingly filed a frivolous application and had failed to establish that it was

filed within a year of her entry date into the United States. Id. at 74-75. Even if

the application were deemed timely and not frivolous, the IJ concluded that it

should be denied based upon the negative credibility determination. Id. at 75-76.

The BIA sustained Lin’s appeal in part and dismissed it in part. Id. at 2.

First, the BIA concluded that Lin did not file a frivolous application because Lin

failed to understand why the authenticity of her documents was being questioned.

Id. at 3. The BIA thus sustained Lin’s appeal in this regard. Id. Second, the BIA

concluded that Lin’s application should still be dismissed based on the IJ’s adverse

credibility finding. Id. That credibility determination was supported by the

inconsistency in Lin’s testimony regarding her ability to travel freely to Hong

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Kong despite her claim that she was under surveillance on a very isolated island as

punishment for her religious practices. Id. Additionally, the BIA deferred to the

IJ’s finding that Lin’s demeanor was that of a person testifying by rote and not

from actual recollection. Id. The FDL’s conclusions that Lin’s Chinese

identification card was counterfeit and her wage statements were unexpectedly

consistent with each other further supported the IJ’s adverse credibility finding. Id.

at 3-4. Accordingly, the BIA concluded that Lin “failed to establish credibly her

eligibility for asylum, if timely, arguendo, or for withholding of removal.” Id. at 4.

In fact, the BIA found that Lin had not even established her identity. Id. The BIA

therefore affirmed the IJ’s denial of asylum, withholding of removal, and CAT

relief. Id.

As a final matter, the BIA rejected Lin’s claim that she was denied due

process because she was not able to cross-examine the forensic expert about her

findings concerning Lin’s documents. Id. The BIA noted that Lin’s attorney never

requested such an opportunity and raised no objection to the FDL report. Id. The

BIA concluded that “[t]he record shows [Lin] was offered a full and fair

opportunity to present her claims.” Id. at 5.

Lin now petitions this court for review. She contends that the IJ’s adverse

credibility finding is not supported by substantial evidence. Additionally, Lin

argues that she was denied due process because she was not afforded the

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opportunity to explain the circumstances surrounding the entry of her wage

statements.

II. DISCUSSION

Our review is limited to the BIA’s decision unless the BIA expressly adopts

the IJ’s opinion or reasoning. See Al Najjar v. Ashcroft, 257 F.3d 1262, 1284

(11th Cir. 2001). Here, the BIA did not make such an explicit adoption but instead

set forth its own reasons for affirming the IJ’s adverse credibility finding. We

therefore review only the BIA’s decision.

We review de novo all legal issues. See Zheng v. U.S. Att’y Gen., 451 F.3d

1287, 1289 (11th Cir. 2006) (per curiam). The BIA’s factual findings are subject

to the substantial evidence test, which means they will be affirmed “if they are

supported by reasonable, substantial, and probative evidence on the record

considered as a whole.” Id. Pursuant to this highly deferential standard of review,

we will affirm the BIA’s decision unless the evidence “compels” otherwise. Id. at

1290 (quotation marks and citation omitted).

A credibility determination is a factual finding reviewed under the

substantial evidence test. See Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1255 (11th

Cir. 2006) (per curiam). Consequently, “we may not substitute [our] judgment for

that of the [IJ] with respect to credibility findings.” Id. (quotation marks and

citation omitted). In determining credibility, the trier of fact should consider all the

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circumstances, including the “demeanor, candor, or responsiveness of the

applicant,” and the consistency between the applicant’s written and oral statements.

8 U.S.C. § 1158(b)(1)(B)(iii). An applicant’s testimony need not be corroborated

if credible. See Ruiz, 440 F.3d at 1255. “Conversely, an adverse credibility

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

application” where the applicant does not produce evidence other than his own

testimony. Id. (quotation marks and citation omitted). The applicant bears the

burden of showing that an adverse credibility finding is not supported by “specific,

cogent reasons, or was not based on substantial evidence.” Id. (quotation marks,

alterations, and citation omitted).

The adverse credibility determinations here were specific, cogent, and

supported by substantial evidence. The BIA correctly identified a major

inconsistency found by the IJ in Lin’s testimony. Specifically, Lin testified that

she would be arrested if she left her residential area and that this travel restriction

was part of her punishment for practicing Christianity. AR at 190. Yet Lin also

testified that when she traveled to Hong Kong, she was “doing nothing illegal at

all” and “went to Hong Kong in a very normal procedure” as a tourist. Id. at 188.

Lin’s explanation for this discrepancy – that she traveled secretly – is belied by her

ability to use a travel permit in her own name. We agree with the BIA that this

inconsistency undercuts the credibility of her persecution claim.

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The BIA also properly deferred to the IJ’s demeanor finding. In her petition

for review, Lin suggests alternative explanations for why she appeared to be

testifying by rote, such as that she may have been overly cautious or nervous. In

the absence of any evidence to support these suggestions, we may not infer them.

See Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en banc) (noting

that “we cannot find, or consider, facts not raised in the administrative forum”). In

any event, the rote appearance of Lin’s testimony was only one of several factors

considered by the IJ in determining Lin’s credibility. The IJ also stated that she

considered “the candor, responsiveness, rationality, internal consistency, and

inherent persuasiveness” of Lin’s testimony. AR at 70-71. The IJ was in the best

position to assess these qualities as the trier of fact. The record does not compel a

contrary finding.

Furthermore, we agree with the BIA that Lin’s documentation adversely

affected her credibility. The FDL specifically found that Lin’s Chinese

identification card was counterfeit. Lin does not dispute the counterfeit nature of

the card in her petition, but instead suggests that she did not know the card was

counterfeit when she submitted it to the immigration court. This argument is

refuted by Lin’s testimony at the removal hearing, however, that when her father

mailed her the card from China, she recognized it as the card she had been using in

China since she turned fourteen years old and therefore presented it as proof of her

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identity in connection with her asylum application. Moreover, Li’s inconsistent

answers as to when the card was reissued to her (in 2001 or in 1998) further

diminished her credibility.

The same holds true with respect to Lin’s wage records. The FDL found

that several factors indicated these documents were not prepared monthly as stated.

These factors included “the presence of excess ink on the wet seal impressions, the

manner of completion of the text entries, as well as the inks used for the recipient

signatures.” AR at 346. Lin proffers in her petition various reasons explaining

how the wage statements could be authentic even though they appeared to have

been made contemporaneously. As Lin concedes, though, she did not testify

during her removal hearing as to any of these explanations. We are thus prohibited

from considering these arguments. See Adefemi, 386 F.3d at 1027. In light of

Lin’s failure to refute the FDL’s findings, the BIA properly found that the

counterfeit identification card and the circumspect wage records supported the IJ’s

adverse credibility finding. See In re O-D-, 21 I. & N. Dec. 1079, 1083 (BIA

1998) (concluding that the applicant was not credible based on the presentation of

a counterfeit identity card and another probably counterfeit document).

Finally, Lin’s claim of a due process violation is baseless. Lin contends that

she was denied the opportunity to explain any purported similarities between her

wage statements. According to Lin, the IJ or the government should have

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questioned her about the form and character of the wage statements. Lin’s

argument ignores the fact that she, not the IJ or the government, bore the burden of

establishing her eligibility for asylum. See 8 U.S.C. 1158(b)(1)(B)(i) (“The burden

of proof is on the applicant to establish that the applicant is a refugee, within the

meaning of section 1101(a)(42)(A) of this title.”). Moreover, the transcript reflects

that Lin was provided ample opportunity to develop the record as to the

authenticity of the wage statements. Lin’s attorney questioned Lin on direct

examination as to how she obtained the documents and whether she signed them.

AR at 197-99. Lin’s attorney also elicited testimony from Lin on redirect that she

had signed the wage forms. Id. at 205. After the IJ questioned Lin about the

auditing procedures involving the wage statements, the IJ asked Lin’s counsel,

“Anything else?” Id. at 210. Lin’s attorney responded, “Nothing further.” Id. at

211. The IJ then turned to Lin and asked, “Is there anything you want to tell me

that hasn’t been asked?” Id. Lin only wondered why the IJ was questioning the

authenticity of her documents. Id. Based on the record, we agree with the BIA’s

conclusion that Lin had a full and fair opportunity to present her claims. No due

process violation has been shown.

Lin produced no evidence other than her own testimony to establish that she

was persecuted for exercising her Christian faith. In the absence of any credible

testimony, the IJ and BIA correctly concluded that Lin failed to show that she was

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entitled to asylum. See Ruiz, 440 F.3d at 1255. Because Lin has not satisfied the

less stringent standard for asylum, she cannot demonstrate eligibility for

withholding of removal under the INA or CAT relief. See Zheng, 451 F.3d at

1292.

III. CONCLUSION

We AFFIRM the BIA’s denial of asylum, withholding of removal, and CAT

relief based on the agency’s adverse credibility finding. The credibility

determination was supported by specific, cogent reasons that were based on

substantial evidence in the record. Accordingly, we DENY the petition for review.

PETITION DENIED.

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