FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MAR 20, 2007

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 06-14707

Non-Argument Calendar

________________________

Agency No. A97-390-848

XI CHEN, 

Petitioner, 

versus 

U.S. ATTORNEY GENERAL, 

Respondent. 

________________________

No. 06-14708

Non-Argument Calendar

________________________

Agency No. A97-390-850

XI TUO CHEN, 

 Petitioner,

versus

U.S. ATTORNEY GENERAL, 

 Respondent.
Because we conclude Petitioners have not met their burden to establish their eligibility for 1

asylum, we also conclude that they failed to meet the higher standard for withholding of removal

under the INA or CAT relief. Al Najjar v. Ashcroft, 257 F.3d 1262, 1292-93 (11th Cir.2001). 

2

________________________

Petitions for Review of a Decision of the

Board of Immigration Appeals

_________________________

(March 20, 2007)

Before TJOFLAT, HULL and MARCUS, Circuit Judges.

PER CURIAM:

Pro se Petitioners, Xi Chen and Xituo Chen, who are brothers and both

natives and citizens of China, petition this Court to review the decision of the

Board of Immigration Appeals (“BIA”) affirming without opinion an Immigration

Judge’s (“IJ’s”) removal order and denial of asylum and withholding of removal

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

Nations Convention on Torture and Other Cruel, Inhuman or Degrading Treatment

or Punishment (“CAT”). Petitioners argue that the IJ’s adverse credibility finding

was not supported by substantial evidence, and that they established a fear of future

persecution, sufficient to warrant asylum, if they return to China. After careful

review, we affirm.1
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When the BIA adopts the IJ’s decision, we review the IJ’s decision. Al

Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). “To the extent that the

[IJ’s] decision was based on a legal determination, [our] review is de novo.” DMuhumed v. U.S. Att’y Gen., 388 F.3d 814, 817 (11th Cir. 2004). “The IJ’s

findings of fact are reviewed under the substantial evidence test,” meaning that we

must affirm the IJ’s decision “if it is supported by reasonable, substantial, and

probative evidence on the record considered as a whole.” Antipova v. U.S. Att’y

Gen., 392 F.3d 1259, 1261 (11th Cir. 2004). Put another way, we will reverse the

IJ only upon finding that the record compels that conclusion. Fahim v. U.S. Att’y

Gen., 278 F.3d 1216, 1218 (11th Cir. 2002).

An alien who arrives in or is present in the United States may apply for

asylum. See INA § 208(a)(1), 8 U.S.C. § 1158(a)(1). The Attorney General has

discretion to grant asylum if the alien meets the INA’s definition of a “refugee.”

See INA § 208(b)(1), 8 U.S.C. § 1158(b)(1). A “refugee” is any person who is

unwilling to return to his home country or to avail himself of that country’s

protection “because of persecution or a well-founded fear of persecution on

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

political opinion . . . .” 8 U.S.C. § 1101(a)(42)(A). 
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The asylum applicant carries the burden of proving statutory “refugee”

status. See Al Najjar, 257 F.3d at 1284; 8 C.F.R. § 208.13(a). The applicant

satisfies this burden by showing, with specific and credible evidence: (1) past

persecution on account of a statutorily listed factor, or (2) a “well-founded fear”

that his statutorily listed factor will cause future persecution. Al Najjar, 257 F.3d

at 1287; 8 C.F.R. § 208.13(a), (b). “To establish asylum based on past

persecution , the applicant must prove (1) that she was persecuted, and (2) that the

persecution was on account of a protected ground.” Silva v. U.S. Att’y Gen., 448

F.3d 1229, 1236 (11th Cir. 2006) (citations omitted). “To establish eligibility for

asylum based on a well-founded fear of future persecution, the applicant must

prove (1) a ‘subjectively genuine and objectively reasonable’ fear of persecution,

that is (2) on account of a protected ground.” Id. (citations omitted). 

If an alien provides credible testimony, it may be sufficient, without

corroboration, to establish his eligibility for relief from removal. Chen, 463 F.3d at

1231. However, an IJ’s denial of asylum relief can be based solely on an adverse

credibility determination if the alien does not produce corroborating evidence. Id.

If the alien does provide corroborating evidence, the IJ may not rely solely on an

adverse credibility determination and must consider the corroborating evidence.

Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1287 (11th Cir. 2005). Once the IJ
5

explicitly finds that the alien lacks credibility, the burden shifts to the alien to show

that the IJ’s credibility determination “was not supported by specific, cogent

reasons or was not based on substantial evidence.” Chen v. U.S. Att’y Gen, 463

F.3d 1228, 1231 (11th Cir. 2006). Indications of reliable testimony include

consistency on direct examination, consistency with the written asylum

application, and the absence of embellishments. See In re B-, 21 I & N Dec. 66, 70

(BIA 1995). 

Here, the IJ made an adverse credibility finding, for which she gave specific

reasons, including that (1) Xi Chen’s testimony before the IJ conflicted with his

testimony at his credible-fear interview and with statements he made in his asylum

application regarding how the Chinese officials discovered his wife’s second

pregnancy, when he learned that his wife had been sterilized, and the name of the

friend at whose house the Chens hid from the Chinese authorities; and (2) Xituo

Chen’s testimony indicated that he did not know some of the facts that he and his

brother were relying on in support of their claim for asylum. These

inconsistencies, as well as the Chens’ failure to provide detailed testimony in aid of

their asylum claims, support the IJ’s adverse credibility findings.

In addition to making adverse credibility findings, the IJ considered the

Chens’ corroborating evidence, which included “notarial birth certifications” and
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an X-ray and hospital records associated with Xi Chen’s wife’s alleged involuntary

sterilization. The IJ stated that she questioned the identity of each petitioner

because although the petitioners left China with their own passports, they had

failed to present legitimate passports in support of their petitions. Moreover, the IJ

noted, among other indications of a lack of authenticity, that the Petitioners’ birth

certifications were issued simultaneously and after the Petitioners left China. As

for Xi Chen’s wife’s X-ray and hospital report, the IJ observed that “the red seal

[on the X-ray] does not consistently follow through from the paper document onto

the photograph,” and that the report did not establish that the existence of a forced

sterilization. On this record, the corroborating evidence does not compel us to

conclude that the IJ erred by finding that Xi and Xituo failed to carry their burden

of showing that they had either suffered past persecution or had a well-founded

fear of future persecution. Accordingly, we deny the petitions for review. 

PETITIONS DENIED.