Yan Qing Feng v. U.S. Attorney General ( 2023 )

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10968
Non-Argument Calendar
____________________
YAN QING FENG,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A216-265-100
____________________
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2 Opinion of the Court 22-10968
Before JORDAN, LAGOA, and BRASHER, Circuit Judges.
PER CURIAM:
Yang Qin Feng, a native and citizen of China, proceeding pro
se, appeals an order of the Board of Immigration Appeals affirming
an immigration judge’s denial of his application for asylum, with-
holding of removal, and relief under the Convention Against Tor-
ture (“CAT”). Mr. Feng contends primarily on appeal that the BIA
and the immigration judge erred when they denied his application
due to an adverse credibility finding related to inconsistencies be-
tween his hearing testimony, his credible fear interview, and his
application.
After review of the parties’ briefs and the record, we con-
clude that substantial evidence supported the adverse credibility
finding because there were inconsistencies in the record as to
whether Mr. Feng broke a window of a construction equipment
when he was protesting the taking of his land by the Chinese gov-
ernment and whether he was beaten by the police and fellow in-
mates when he was detained after the protest. We therefore deny
the petition.
I
A
Mr. Feng is a native and citizen of China. On October 13,
2017, he crossed the Mexican border smuggled in the trunk of a car
and applied for admission to the United States at the San Isidro port
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22-10968 Opinion of the Court 3
of entry. He was referred by the authorities to an asylum officer
for a credible fear interview because he expressed fear of persecu-
tion in China.
During his telephonic credible fear interview, Mr. Feng tes-
tified under oath and with the benefit of an interpreter fluent in his
native Mandarin language. He explained that he came to the
United States because he was harmed by the Chinese government.
He claimed that the Aojian County Government acquired his land
by force and without his permission, so he and other villagers gath-
ered “at the gate of the government, to protest, to ask for justice.”
Mr. Feng stated that he was protesting the government’s corrup-
tion and the fact that he was offered low compensation for his land.
Minutes after the protest began, the police came and started
capturing the protesters because it was illegal to protest. Mr. Feng
explained to the asylum officer that he was taken by the police and
locked up for seven days in a small room. According to Mr. Feng,
he was arrested and detained because he tried to stop the construc-
tion from starting and “broke the window of the machinery at the
site.” After his seven-day detention, Mr. Feng paid a fine for the
damage to the construction equipment and was released.
During the interview, the asylum officer asked Mr. Feng if
he was ever threatened or harmed by anyone else in China aside
from his seven-day arrest. Mr. Feng responded, “[t]he police just
came to my place looking for me from time to time, make me feel
like I am under the threat.” The asylum officer then asked Mr.
Feng whether, aside from those two incidents, he was ever
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4 Opinion of the Court 22-10968
threatened or harmed by anyone else, and he said “no.” At the end
of the interview, the asylum officer summarized Mr. Feng’s state-
ments back to him:
You testified that you were captured by the police for
trying to get them to stop taking over your land and
damaging the machinery they were [using] and then
you had to spend 7 days in jail and pay a fine . . . You
fear going back to China because you fear the police
will capture you for your participation in the protest.
R. at 258.
Mr. Feng agreed that the summary was accurate, but added
that after he was released, the police demanded that he promise
that he would not make similar mistakes again. Mr. Feng indicated
that he understood the asylum officer’s questions, and the inter-
preter stated that there were no problems understanding Mr. Feng.
The asylum officer determined that Mr. Feng was credible and had
established a credible fear of persecution based on his political opin-
ion.
B
On December 22, 2017, the Department of Homeland Secu-
rity served Mr. Feng with a Notice to Appear (“NTA”), charging
him with inadmissibility under 8 U.S.C. § 1182(a)(7)(A)(i)(I) as a
non-citizen who at the time of entry was not in possession of valid
entry documents. Mr. Feng, through counsel, admitted the allega-
tions in the NTA and conceded removability.
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22-10968 Opinion of the Court 5
Mr. Feng then filed an application for asylum, withholding
of removal, and CAT protection. He indicated in his application
that his claims were based on a political opinion related to a land
dispute and claimed he was mistreated by the Chinese police. On
April 9, 2018, an immigration judge scheduled a merits hearing on
Mr. Feng’s application for June 8, 2018 and set the deadline to sub-
mit any supporting documents for May 30, 2018.
C
At a hearing held over two days before the immigration
judge, Mr. Feng, who was represented by counsel and provided an
interpreter, testified in support of his application. Mr. Feng reiter-
ated his testimony that in 2017 the Chinese government “falsely
took” his land, which his family had owned for a few decades, for
a “government project . . . to expand . . . the river canals and also
[to] try to clean up the pollution.” He described that when he and
other villagers protested the Chinese government’s actions, the po-
lice came and arrested him. According to Mr. Feng, he was charged
with interfering with a government function and disturbing the so-
cial order. After seven days of detention, he was fined and released,
but was not allowed to keep his land.
Mr. Feng testified that after his release, he went with the
other villagers to continue protesting. The government tried to
arrest the protestors again, but Mr. Feng was able to escape. While
Mr. Feng was in hiding, police officers told his wife that he “was
doing illegal protesting” and that once he returned, he should “turn
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himself in.” After hiding for several months, Mr. Feng decided in
August of 2017 to leave China.
Mr. Feng explained that after arriving in the United States in
October of 2017, his wife told him that the Chinese government
had “sent a notice to [his] house” in April of 2018. His wife did not
tell him what the notice said. However, in August of 2018, his wife
told him that police officers came to his house seeking to arrest
him. The police officers told Mr. Feng’s wife to ask him to “turn
himself in immediately” and that he would be “sentenced to
prison.” Mr. Feng testified that if he were sentenced to prison in
China, he would be “abused and beaten by the police inside the
prison cell.”
On cross-examination, Mr. Feng was questioned about the
details of his protest activity and consequent arrest for interfering
with a Chinese government action. Mr. Feng stated that on the
day he was arrested, he attempted to stop the government from
starting construction. When asked whether he broke a window on
a piece of machinery, he replied, “No. I did not do that.” The gov-
ernment pointed out that Mr. Feng testified to breaking the win-
dow in his credible fear interview, but Mr. Feng could not remem-
ber what he had previously testified. The government submitted
Mr. Feng’s credible fear interview for impeachment purposes, and
Mr. Feng’s counsel did not object.
The government then cross-examined Mr. Feng about his
seven-day detention. For the first time, Mr. Feng stated that he
“was abused by the people in that jail.” The government again
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referenced Mr. Feng’s credible fear interview and noted that his
testimony was inconsistent because he had never mentioned any
physical abuse during his detention. Mr. Feng attempted to recon-
cile the inconsistency by stating, “[a]t that time, the [credible fear]
interview was conducted telephonically. So some questions were
not that clear to me and I couldn’t know about the questions.
Maybe, that’s it.”
When the immigration judge questioned Mr. Feng about
the abuse he suffered while he was in jail, he testified that he was
“abused and beaten by the inmates inside the jail when [he] was
incarcerated.” Mr. Feng also testified that he was beaten by the
police during an interrogation. According to Mr. Feng, the police
“used a baton to beat [his] legs and [his] arms” and they “slapped
[him] on [his] face.” He claimed he “was beaten with the police
baton for more than ten times during the interrogation.” Mr. Feng
further testified that once they released him, he went to a small
hospital for treatment, where a doctor treated his wounds and gave
him a sports medicine cream. Mr. Feng claimed he omitted the
physical abuse he endured from his asylum application because he
was in detention at the time and did not think it would affect his
application.
On redirect, Mr. Feng explained that he was beaten by other
inmates because he “did not follow their rules” when they asked
him to “wash the bathroom and to do some cleaning.” Mr. Feng
testified that the abuse stopped once he “called out to officers” for
help. Mr. Feng also testified that a police officer told the inmates
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8 Opinion of the Court 22-10968
to “fix [him] up, to beat [him].” Mr. Feng explained that the initial
interrogation when he was first detained lasted around twenty
minutes, during which some officers “started beating [him].”
After Mr. Feng’s testimony, the government moved for an
adverse credibility finding because Mr. Feng’s testimony was inter-
nally inconsistent with different portions of his testimony, his cred-
ible fear interview, and his application. The government also ar-
gued that Mr. Feng’s application should be denied and he should
be removed. According to the government, Mr. Feng had not es-
tablished a nexus to a protected ground and his claimed harm was
either perpetrated by a non-government actor or did not constitute
persecution.
Mr. Feng’s counsel, however, argued that Mr. Feng was ar-
rested because of his political opinion. Counsel asserted that if Mr.
Feng went back to China, he would be arrested and detained. Ac-
cording to counsel, the Chinese police are not after Mr. Feng for
his first protest, but for the second protest where he challenged the
unfair compensation from the government.
D
The immigration judge denied Mr. Feng’s claims for asylum,
withholding of removal, and CAT relief. The immigration judge
first excluded the untimely documentary evidence provided by Mr.
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22-10968 Opinion of the Court 9
Feng because it was submitted after the deadline had passed and no
motion explaining the late submission had been filed. 1
The immigration judge then entered an adverse credibility
finding because Mr. Feng’s testimony “differ[ed] wildly from his
statements to the asylum officer during his credible fear interview
and [wa]s inconsistent with his [asylum application].” The immi-
gration judge found that Mr. Feng’s hearing testimony and his
credible fear interview testimony regarding “who broke the win-
dow on the construction equipment” were “absolutely opposite of
one another,” because Mr. Feng stated during his credible fear in-
terview that he broke the window but denied doing so at the hear-
ing.
The immigration judge further found that Mr. Feng’s hear-
ing testimony—where he stated he was harmed by police and/or
other detainees—was inconsistent with his credible fear interview
testimony where he was asked three times if he had been physically
harmed but never said he was beaten by police officers or fellow
1 Mr. Feng’s documentary evidence consisted of (1) his personal statement, (2)
his identification card, (3) his household registry, (4) his marriage certificate,
(5) the birth certificates of his two children, (6) a fine receipt for violating
China’s family planning policy, (7) a fine receipt for disturbing the social order,
(8) two notices from his village’s committee, (9) photos of the government
confiscating his land, (10) a New York Times article detailing the dispute be-
tween farmers and local officials, (11) another New York Times article reporting
that one of the farmers was sentenced to three years imprisonment for dis-
turbing the social order, (12) a written statement from his wife, and (13) the
State Department’s 2017 Human Rights Report on China.
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10 Opinion of the Court 22-10968
inmates. The immigration judge “considered and expressly re-
ject[ed]” Mr. Feng’s explanation that “he did not understand, that
he was confused, that it was on the telephone, and that he did not
understand the interpreter.” The immigration judge explained that
Mr. Feng confirmed he was able to hear and understand the inter-
preter and that he confirmed to the asylum officer that the sum-
mary of his credible fear interview was accurate. The immigration
judge also noted that Mr. Feng omitted from his written asylum
application any claim that he was harmed by fellow detainees.
Therefore, the immigration judge determined that an adverse cred-
ibility finding was sufficient to deny Mr. Feng’s application.
Notwithstanding his adverse credibility finding, the immi-
gration judge made three alternative findings on the merits in case
the BIA or this court disagreed with his credibility finding. Specifi-
cally, the immigration judge alternatively found that Mr. Feng (1)
did not establish past persecution, (2) failed to show a well-founded
fear of future persecution, and (3) failed to establish a nexus to a
political opinion. The immigration judge additionally found that
Mr. Feng did not meet the higher burden of proof for withholding
of removal because he had not met the lower burden for asylum,
and that he did not establish a likelihood of torture by or with the
acquiescence of the Chinese government for CAT relief.
E
Following the denial of his application, Mr. Feng appealed
to the BIA. Mr. Feng argued that the immigration judge erred in
denying his claims and, in particular, in his findings that he had not
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22-10968 Opinion of the Court 11
testified credibly and that his documentary evidence was untimely.
The BIA, however, expressly adopted and affirmed the immigra-
tion judge’s denial of Mr. Feng’s claims based on an adverse credi-
bility finding.
The BIA explained that because the adverse credibility find-
ing was dispositive of Mr. Feng’s application, it declined to address
the denial of relief and protection on the “merits.” The BIA noted
that during the hearing before the immigration judge, Mr. Feng
“denied having broken a window of some construction equipment
during the protest . . . but, during his credible fear interview, he
indicated that he did break a window during the protest.” The BIA
further noted that Mr. Feng “during his credible fear interview did
not report any physical harm or abuse at the hands of the authori-
ties during his 7-day detention nor did he testify on direct examina-
tion that he was physically harmed during detention.” But the BIA
noted that on cross-examination, he stated he was abused while in
jail and that he was beaten by his fellow detainees.
The BIA determined that Mr. Feng “did not persuasively re-
solve or explain the credibility issues raised by the [immigration
judge], despite having been given an opportunity to do so.” The
BIA disagreed with Mr. Feng’s assertion that the inconsistencies in
his testimony were “minor,” concluding that they were “matters
that go to the heart of [his] claim with regard to the nature, circum-
stances, and severity of the harm that he allegedly suffered.”
Additionally, the BIA concluded that the immigration judge
did not err in excluding Mr. Feng’s untimely documents from the
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12 Opinion of the Court 22-10968
record. The BIA found Mr. Feng’s explanation—that the docu-
ments were filed late because they were not received until after
their due date—unpersuasive because he did not explain why the
documents could not have been obtained earlier or how those doc-
uments would have resolved the credibility concerns.
Finally, the BIA concluded that the credibility determination
was fatal to Mr. Feng’s claims for withholding of removal and his
request for CAT protection. The BIA thus dismissed Mr. Feng’s
appeal.
Mr. Feng now petitions this court for review.
II
“When the BIA issues a decision, we review the BIA’s deci-
sion, except to the extent that the BIA has expressly adopted the
[immigration judge]’s decision.” Lyashchynska v. U.S. Att’y. Gen.,
676 F.3d 962, 966–67 (11th Cir. 2012) (quoting Ruiz v. Gonzales, 479
F.3d 762, 765 (11th Cir. 2007)). “In that instance, we review the
[immigration judge]’s decision as well.” Id. at 967 (citation omit-
ted). If the BIA’s decision is supported by reasonable, substantial,
and probative evidence when the record is considered as a whole,
we must affirm. See id. “To conclude the BIA’s decision should be
reversed, ‘we must find that the record not only supports the con-
clusion, but compels it.’” Id. (quoting Ruiz, 479 F.3d at 765). “Fac-
tual determinations, including credibility determinations, are re-
viewed under a substantial evidence standard, which provides that
the decision can be reversed only if evidence compels a reasonable
fact finder to find otherwise.” Tang v. U.S. Att’y Gen., 578 F.3d 1270,
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22-10968 Opinion of the Court 13
1276 (11th Cir. 2009) (internal quotations omitted) (citing Sepulveda
v. U.S. Att’y Gen., 401 F.3d 1226, 1230 (11th Cir. 2005)).
Mr. Feng is proceeding without counsel. So we liberally
construe his pro se filings. See Tannenbaum v. United States, 148 F.3d
1262, 1263 (11th Cir. 1998).
III
Mr. Feng raises several arguments on appeal. See Peti-
tioner’s Br. at 18–58. First, he challenges the immigration judge’s
exclusion of his documentary evidence, arguing that the docu-
ments were filed just a few days late. See id. at 18-21. Second, he
argues that the immigration judge and the BIA erred in discrediting
his testimony due to apparent inconsistencies because he was con-
sistent, detailed, and credible about the harm he suffered and could
suffer in China. See id. at 21–38. Third, he contends that the immi-
gration judge and the BIA erred in finding that he had not estab-
lished past persecution and a well-founded fear of future persecu-
tion. See id. at 38–46. Finally, he challenges the denial of his claim
for withholding of removal and claim for CAT relief. See id. at 53–
58. 2
As an initial matter, we do not consider Mr. Feng’s argu-
ments challenging the merits of the immigration judge’s alterna-
tive holdings that he failed to meet his burden of establishing his
2 Mr. Feng’s initial brief is nearly identical to the brief he filed before the BIA.
Compare R. at 57–93, with Petitioner’s Br. at 17–58. Mr. Feng did not file a
reply brief.
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eligibility for asylum, withholding of removal, and CAT relief. We
generally “review the BIA’s decision as the final judgment unless
the BIA expressly adopted the [immigration judge]’s decision,” but
issues not reached by the BIA are not properly before us. Gonzalez
v. U.S. Att’y Gen., 820 F.3d 399, 403 (11th Cir. 2016). The BIA here
expressly declined to “address the denial of relief and protection on
the merits,” so the immigration judge’s alternative holdings on the
merits are not properly before us. R. at 5. See also Kumar v. U.S.
Att’y Gen., No. 22-10171, 2022 WL 17246663, at *4 (11th Cir. Nov.
28, 2022) (“The BIA expressly declined to reach the IJ’s alternative
holdings, however. That means we review both the BIA’s and IJ’s
decisions regarding the adverse credibility ruling, but because the
BIA did not reach the IJ’s alternative holdings, they are not before
this Court.”).
We therefore only address Mr. Feng’s arguments as to the
two issues considered by the BIA—(1) the exclusion of his docu-
mentary evidence, and (2) the adverse credibility determination.
We consider each argument in turn.
A
Federal regulations provide immigration judges with admin-
istrative control over the removal hearing. See Tang, 578 F.3d at
1276 (citing 8 C.F.R. § 1003.31(c)). An immigration judge “may set
and extend time limits for the filing of applications and related doc-
uments and responses thereto, if any. If an application or docu-
ment is not filed within the time set by the [immigration judge],
the opportunity to file that application or document shall be
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deemed waived.” Id. (internal quotation marks omitted). We
therefore review for abuse of discretion an immigration judge’s de-
cision to exclude corroborating documents that were untimely
filed. See id. (“We conclude that the [immigration judge]’s decision
to exclude evidence offered for submission after a court-ordered
filing deadline is discretionary.”).
Here, during a hearing on April 9, 2018, the immigration
judge set the deadline for the cross-service of the supporting docu-
ments of both parties for May 30, 2018. See R. at 108. Although the
government timely filed its supporting documents, Mr. Feng did
not file his documents until June 4, 2018. See id. at 176–177. The
immigration judge thus excluded Mr. Feng’s documentary evi-
dence as untimely. See id. at 178. Given our precedent, we con-
clude that the immigration judge did not abuse his discretion be-
cause Mr. Feng filed his supporting documents after their due date.
See Kueviakoe v. U.S. Att’y Gen., 567 F.3d 1301, 1306 n.3 (11th Cir.
2009) (holding that an immigration judge did not abuse its discre-
tion in refusing to admit evidence after a deadline imposed under
8 C.F.R. § 1003.31(c)).
Mr. Feng argues that the immigration judge erred in exclud-
ing his documentary evidence because the documents “were filed
just a few days late” due to issues receiving the documents from
China and other administrative delays. See Petitioner’s Br. at 18–
21. We find that argument unconvincing. There is no indication
in the record that Mr. Feng, who was represented by counsel at the
time, filed any motion requesting an extension of the deadline or
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16 Opinion of the Court 22-10968
describing any difficulties in obtaining the documents. As the im-
migration judge explained, even when Mr. Feng’s attorneys tried
to re-file the untimely documentary evidence at the continued
hearing on October 2, 2018, “[n]o motion to accept untimely doc-
uments was filed, and no motion to explain why these documents
were submitted months after the filing deadline was made.” R. at
109. Under these circumstances, the immigration judge did not
abuse his discretion in excluding Mr. Feng’s untimely filed docu-
ments. See Kueviakoe, 567 F.3d at 1306 n.3 (“The [immigration
judge] did not abuse its discretion by refusing to consider any of
Kueviakoe’s untimely exhibits.”).
B
“An applicant bears the burden of satisfying the [immigra-
tion judge] that [his] testimony is credible, is persuasive, and refers
to specific facts sufficient to demonstrate that the applicant is a ref-
ugee.” Lyashchynska, 676 F.3d at 967. 3
3 An applicant for asylum must meet the Immigration and Naturalization Act’s
definition of a refugee. See INA § 208(b)(1), 8 U.S.C. § 1158(b)(1)(A). A “refu-
gee” is “any person who is outside any country of such person’s nationality”
who is unwilling to return to that country “because of persecution or a well-
founded fear of persecution on account of race, religion, nationality, member-
ship in a particular social group, or political opinion.” § 1101(a)(42)(A). To
meet that definition, the applicant must, “with specific and credible evidence,
demonstrate (1) past persecution on account of a statutorily listed factor, or
(2) a well-founded fear that the statutorily listed factor will cause future perse-
cution.” Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1257 (11th Cir. 2006) (quotation
marks omitted and emphasis added).
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An immigration judge may base a credibility finding on the
totality of the circumstances, including (1) the demeanor, candor,
or responsiveness of the applicant; (2) the inherent plausibility of
the applicant’s account; (3) the consistency between the applicant’s
written and oral statements; (4) the internal consistency of each
statement; and (5) the consistency of the statements with other rec-
ord evidence, including State Department reports. See INA §
208(b)(1)(B)(iii), 8 U.S.C. § 1158(b)(1)(B)(iii). Additionally, an ad-
verse credibility determination may be based on inaccuracies, in-
consistences, and falsehoods, whether or not they relate to the
“heart” of the applicant’s claim. Id.1
We have previously explained that an immigration judge
“must offer specific, cogent reasons for an adverse credibility find-
ing.” Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1287 (11th Cir. 2005).
The immigration judge and the BIA satisfied this requirement be-
cause they did not simply give general reasons for denying Mr.
Feng’s application for relief. They both specifically referred to Mr.
Feng’s internal inconsistencies in different portions of his testi-
mony, his credible fear interview, and his asylum application. In
particular, there are two main inconsistencies the immigration
judge and the BIA relied on: (1) Mr. Feng’s inconsistent testimony
about whether he broke the window of the construction equip-
ment, and (2) Mr. Feng’s inconsistent testimony about whether he
had been physically harmed by the police and/or other detainees.
The immigration judge and the BIA also based their adverse
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18 Opinion of the Court 22-10968
credibility determinations on Mr. Feng’s failure to resolve or ex-
plain the inconsistencies despite being given the opportunity to do
so.
In sum, the BIA and the immigration judge provided spe-
cific, cogent reasons for their adverse credibility finding. See Forgue,
401 F.3d at 1287.
2
Given that the adverse credibility finding was based on spe-
cific, cogent reasons, Mr. Feng bears the burden of showing that it
is not supported by substantial evidence. See Tang, 578 F.3d at 1277(“If the court explicitly determines that the alien lacks credibility,
the court ‘must offer specific, cogent reasons’ for the finding. The
burden then shifts to the alien to show that the credibility decision
was not supported by “specific, cogent reasons” or was not based
on substantial evidence.”) (citing Forgue, 401 F.3d at 1287). Mr.
Feng, however, fails to meet that burden because substantial evi-
dence supports the adverse credibility finding.
First, Mr. Feng’s testimony at the hearing was inconsistent
with his testimony to the asylum officer during his credible fear in-
terview. For instance, during his credible fear interview, Mr. Feng
told the asylum officer that he broke the window on the construc-
tion equipment. See R. at 254. But, during the hearing, he denied
having broken the window. See id. at 214. Additionally, despite
having been asked multiple times, Mr. Feng never told the asylum
officer during his credible fear interview that he was physically
harmed and beaten by the police and other detainees when he was
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arrested after the protest. See id. at 254. Mr. Feng, however, testi-
fied for the first time during the hearing that he was beaten by the
police and other detainees after he was arrested. See id. at 217.
Second, Mr. Feng’s testimony at the hearing before the im-
migration judge, which took place over multiple days, was inter-
nally inconsistent. For example, during his direct examination, Mr.
Feng did not mention that he suffered any physical abuse during
the time he was detained after he was arrested. See id. at 209–213.
However, when the government cross-examined Mr. Feng about
his seven-day detention, he testified that he was physically abused
while in jail. See id. at 217.
Third, Mr. Feng’s testimony was inconsistent with his asy-
lum application. Although Mr. Feng testified during the hearing
that he was harmed by his fellow detainees when he was arrested,
he omitted that information from his written asylum application.
See R. at 405–406. Indeed, Mr. Feng wrote on his asylum applica-
tion that he was “detained, interrogated, and beaten by the Chinese
police.” Id. at 405. Mr. Feng, however, never wrote that that he
had been beaten or harmed by fellow detainees at the prison. And,
although he attempted on redirect to develop a theory that the Chi-
nese police were encouraging or instigating the fellow detainees to
beat him, he never wrote that on his asylum application either.
Compare R. at 230–231, with R. at 405.
In sum, considering that substantial evidence supported the
immigration judge’s and the BIA’s specific, cogent reasons for find-
ing that Mr. Feng was not credible, we cannot say that the record
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20 Opinion of the Court 22-10968
compels reversal of the adverse credibility determination. See Xia
v. U.S. Atty. Gen., 608 F.3d 1233, 1240 (11th Cir. 2010) (holding that
substantial evidence supported an adverse credibility determina-
tion where the applicant’s testimony “included at least one internal
inconsistency” and “one omission”); Chen v. U.S. Att’y. Gen., 463
F.3d 1228, 1232–33 (11th Cir. 2006) (holding that substantial evi-
dence supported an adverse credibility determination where there
were various inconsistencies).
3
Mr. Feng raises several arguments attacking the adverse
credibility finding, but they are all unpersuasive.
Mr. Feng contends that his testimony at the hearing regard-
ing the broken window was a “minor inconsistency.” See Peti-
tioner’s Br. at 21. We disagree. The discrepancies in Mr. Feng’s
testimony are hardly “minor.” As the BIA observed, “whether or
not [Mr. Feng] broke a window during a protest (and was therefore
arrested), and whether or not he was beaten by the authorities and
by fellow detainees while under arrest are matters that go to the
heart of [his] claim with regard to the nature, circumstances, and
severity of the harm that he allegedly suffered.” R. at 5. In any
event, an immigration judge can consider any inaccuracy or false-
hood, regardless of whether it “goes to the heart of the applicant’s
claim, or any other factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). See Chen,
463 F.3d at 1233 (rejecting the petitioner’s argument that the incon-
sistencies in the record were trivial and irrelevant to the dispositive
issues).
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22-10968 Opinion of the Court 21
Additionally, Mr. Feng argues that he did not mention the
physical abuse he suffered because neither his attorney nor the asy-
lum officer asked him questions that would have elicited a response
that he had been physically harmed. See Petitioner’s Br. at 29–31.
We remain unconvinced. As the immigration judge noted, Mr.
Feng, was asked “three times” by the asylum officer in his credible
fear interview if he had been physically harmed, but he never said
he had been. See R. at 115. And at the hearing, Mr. Feng had ample
opportunity to testify during direct examination about the physical
harm he had endured, but he never did. See R. at 209–213. Thus,
Mr. Feng’s attempt to deflect the blame for his inconsistent testi-
mony is unpersuasive.
Likewise, Mr. Feng’s contention that he did not mention the
physical abuse during his credible fear interview because he did not
think of it at that moment and because he was nervous and con-
fused, is unavailing. See Petitioner’s Br. at 31–32. An applicant’s
tenable explanation for an inconsistency or implausibility will not
necessarily warrant reversal, particularly where corroborating evi-
dence is lacking. See Chen, 463 F.3d at 1233. Here, Mr. Feng’s ex-
planation falls flat because when the asylum officer read Mr. Feng
the summary of his testimony, he not only agreed with it, but also
made an addendum correcting the asylum officer. See R. at 258. As
the immigration judge correctly observed, this demonstrated that
Mr. Feng “understood the interpreter, that he understood the in-
terview, he participated in it meaningfully, and understood it well
enough to make corrections to the asylum officer’s statements at
the end of the interview.” R. at 116. Even months after his credible
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22 Opinion of the Court 22-10968
fear interview, when any alleged confusion and nervousness had
sufficient time to fade, Mr. Feng still failed to include the physical
abuse he sustained from the other detainees in his asylum applica-
tion. See R. at 405.
Finally, Mr. Feng argues that if his documentary evidence
would have been admitted, it would have “overcome any per-
ceived inconsistencies or weaknesses in his testimony.” Peti-
tioner’s Br. at 36–37. This argument fails because, as the BIA ex-
plained, Mr. Feng “does not argue or even suggest that the docu-
ments which he sought to introduce past the court-imposed dead-
line rehabilitate his credibility or resolve the credibility concerns
which served as a basis for denying relief in this case.” R. at 6. Mr.
Feng’s argument also fails because “[a] denial of relief [ ] can be
supported solely by an adverse credibility determination, especially
if the alien fails to produce corroborating evidence.” Lyashchynska,
676 F.3d at 967. See also Mohammed v. U.S. Att’y Gen., 547 F.3d 1340,
1347 (11th Cir. 2008) (“Th[e] language in [8 C.F.R. § 208.13] plainly
indicates that if the trier of fact either does not believe the applicant
or does not know what to believe, the applicant’s failure to corrob-
orate his testimony can be fatal to his asylum application.”).
IV
The BIA did not err in dismissing Mr. Feng’s appeal challeng-
ing the immigration judge’s denial of his application for asylum,
withholding of removal, and CAT relief based on the adverse cred-
ibility finding.
PETITION DENIED.