FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

APRIL 16, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 08-12822

Non-Argument Calendar

________________________

Agency No. A72-373-515

MENG GEN LIN,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(April 16, 2009)

Before BIRCH, HULL and ANDERSON, Circuit Judges.

PER CURIAM:

Meng Gen Lin, through counsel, seeks review of the Immigration Judge

(“IJ”) and Board of Immigration Appeal’s (“BIA”) decision pretermitting his 2001
application for asylum (“2001 Application”) as untimely, and denying withholding

of removal under the Immigration and Naturalization Act (“INA”) and relief under

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

Degrading Treatment or Punishment (“CAT relief”).

In its oral decision, the IJ concluded that Lin had failed to present sufficient

credible evidence to support his claims that he would be persecuted for violating

China’s family-planning policies. Thereafter, the BIA affirmed and adopted the

IJ’s decision, finding, inter alia, that the IJ’s adverse credibility determination was

not clearly erroneous. On appeal, Lin contends that he was eligible for

withholding of removal and CAT relief based on his claim that he would be

persecuted for violating China’s family-planning policies. In those arguments,

however, Lin fails to attack the IJ’s determination that he failed to provide credible

evidence to support his claims.

As an initial matter, Lin originally sought asylum relief, but in his brief

before us, Lin has not argued this issue and has therefore abandoned it. Mendoza

v. U.S. Att’y Gen., 327 F.3d 1283, 1286 n.3 (11th Cir. 2003); Al Najjar v.

Ashcroft, 257 F.3d 1262, 1283 n.12 (11th Cir. 2001) (stating that issues not argued

in the initial brief on appeal are deemed abandoned). In addition, Lin did not

properly raise his claim for CAT relief before the BIA, and we dismiss this portion

of his petition for review. See Alim v. Gonzales, 446 F.3d 1239, 1253 (11th Cir.

2006) (holding that we lacked jurisdiction over a claim when the petitioner did not

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discuss the merits of the claim, resulting in failure to exhaust available

administrative remedies).

When the BIA issues a decision, we review only that decision, except to the

extent that the BIA expressly adopts the IJ’s decision. Nreka v. U.S. Att’y Gen.,

408 F.3d 1361, 1368 (11th Cir. 2005) (citing Al Najjar, 257 F.3d at 1284). In this

case, the BIA both expressly adopted the IJ’s decision and made its own

observations, so we review both the BIA’s and the IJ’s decisions.

To the extent the BIA’s decision was based on a legal determination, our

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

2004). However, factual determinations are reviewed under the

substantial-evidence test, and we “must affirm the . . . 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 omitted). Thus, a finding of

fact will be reversed “only when the record compels a reversal; the mere fact that

the record may support a contrary conclusion is not enough to justify a

reversal . . . .” Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004); see

also INA § 242(b)(4)(B), 8 U.S.C. § 1252(b)(4)(B) (“[T]he administrative findings

of fact are conclusive unless any reasonable adjudicator would be compelled to

conclude to the contrary . . . .”). In addition we “view the record evidence in the

light most favorable to the agency’s decision and draw all reasonable inferences in

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favor of that decision.” Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1236 (11th Cir.

2006) (quotation omitted).

We may not substitute our judgment for that of the IJ and BIA with respect

to credibility findings. D-Muhumed, 388 F.3d at 818. “Once an adverse

credibility finding is made, the burden is on the applicant alien to show that the . . .

credibility decision was not supported by specific, cogent reasons or was not based

on substantial evidence.” Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1287 (11th

Cir. 2005) (quotations omitted).

The IJ must make an explicit, or “clean,” determination that an applicant’s

testimony is not credible, which will be viewed as conclusive unless a reasonable

factfinder would be compelled to conclude to the contrary. Yang v. U.S. Att’y

Gen., 418 F.3d 1198, 1201 (11th Cir. 2005). A comment on the sufficiency of the

evidence concerning a certain point, without more, may not constitute a sufficient

credibility finding. See id. at 1201 (holding that an IJ’s statement that an

applicant’s testimony was “extremely inconsistent and [made] absolutely no sense

whatsoever” was not a clean credibility finding but a comment on the sufficiency

of the evidence). Furthermore, if the IJ does not make a specific finding as to

credibility, the petitioner’s testimony is presumed to be credible. See Niftaliev v.

U.S. Att’y Gen., 504 F.3d 1211, 1216 (11th Cir. 2007) (finding that the IJ stated

the petitioner was not incredible and testimony was consistent with the

application).

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Indications of reliable testimony include consistency on direct examination,

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

In re B–, 21 I & N Dec. 66, 70 (BIA 1995). An adverse credibility determination

alone may be the basis for denying an asylum application if the applicant produces

no evidence other than his testimony. Forgue, 401 F.3d at 1287. If the applicant

produces evidence then it must also be considered by the IJ, and the IJ may not rely

solely on an adverse credibility determination in denying relief in those instances.

Id.

An IJ or the BIA may require a petitioner to present corroborating evidence.

Under the REAL ID Act of 2005, “[n]o court shall reverse a determination made

by a trier of fact with respect to the availability of corroborating

evidence . . . unless the court finds . . . that a reasonable trier of fact is compelled to

conclude that such corroborating evidence is unavailable.” Pub. L. No. 109-13,

Div. B, § 101(e), 119 Stat. 231, 305 (2005). This provision is retroactively

applicable to all cases in which the final administrative order was issued before,

on, or after May 11, 2005, the effective date of the REAL ID Act of 2005, and

thus, it applies to Lin. Id. at § 101(h)(3), 119 Stat. at 305.

The IJ listed numerous inconsistencies among Lin’s testimony, his

2001 Application, and his 1994 Application. The IJ also determined that Lin had

failed to present credible evidence of the number of children he had and whether or

not his wife was sterilized. The specific inconsistencies cited by the IJ and BIA

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are supported by the record, given that Lin did not mention the existence of his

second daughter until after he initially filed the 2001 Application, as well as the

fact that Lin’s 1994 Application put him in the United States at the time of the

child’s alleged date of conception and birth.

Because substantial evidence supported the BIA’s and IJ’s determinations

that Lin failed to provide credible evidence with regard to his withholding of

removal claim, we deny this portion of the petition for review.

Upon review of the record on appeal, and upon consideration of the parties’

briefs, we find no reversible error.

PETITION DISMISSED, IN PART, AND DENIED, IN PART.

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