NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 09-2770

___________

XUE JIN CHEN,

 Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A098-596-558)

Immigration Judge: Honorable Eugene Pugliese

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

April 14, 2010

Before: AMBRO, CHAGARES and ALIDSERT, Circuit Judges

(Opinion filed: May 20, 2010)

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OPINION

___________

PER CURIAM

Petitioner Xue Jin Chen seeks review of the Board of Immigration Appeals’

(“BIA”) final order of removal. In its order, the BIA affirmed the Immigration Judge’s
Chen filed a second asylum application in November 2006. 1

2

(“IJ”) decision to deny Chen’s application for asylum, withholding of removal, and

protection under the Convention Against Torture (“CAT”). We will deny the petition.

I.

Chen is a native and citizen of China who lived in Fujian Province. She entered

the United States without inspection in December 2004 and was subsequently charged

with removability under INA § 212(a)(6)(A)(i). In October 2005, Chen applied for

asylum, withholding of removal, and relief under the CAT claiming that she experienced

past persecution and fears future persecution on account of China’s family planning

policy.1

At the administrative hearing, Chen testified that she first became pregnant in

China in January 2001, at age eighteen. She was not married to the father of the child,

Oyung Sing Hi (“Oyung”) at the time. After Chen discovered she was pregnant, she went

to Oyung’s house to hide. Chen testified that she stayed there until March 2001, when

government officials arrived to check their identities. Upon inspection, the officials

discovered that she was not from that community. 

Chen testified that officials then took her to the local birth control office and

performed tests on her, which revealed that she was pregnant. The officials then took

Chen to a hospital where an abortion was performed against her will. After the abortion,

Chen claimed that the officials warned her that if she got pregnant again, she would be
3

subject to sterilization. Chen testified that after the abortion, she continued to live with

Oyung and that they planned to marry in May 2004. On the morning of May 11, 2004,

Chen and Oyung had a traditional marriage celebration at Chen’s house and then

attempted to register their marriage. Chen and Oyung were not able to register for

marriage that day, as a physical exam of Chen was first required. During the examination

the following day, officials discovered that Chen was pregnant. Chen testified that birth

control officials arrived shortly thereafter and performed an abortion against her will and

decreed that she could not get married or become pregnant for two years. Although the

officials did not require that she be subject to IUD insertion at that time, on crossexamination Chen testified that they came looking for her on three separate occasions in

an attempt to take her for sterilization.

Approximately three months later, Chen left China without Oyung; they no longer

have a relationship. In May 2006, while in the United States, Chen married and later gave

birth to a son. Chen testified that she fears returning to China because she wants to have

more children and China only allows one child. Furthermore, she believes she would be

subject to sterilization and would be forced to undergo an abortion should she become

pregnant.

In an October 2007 opinion, the IJ denied Chen’s application for asylum,

withholding of removal and CAT protection, finding that Chen failed to offer any

meaningful corroborating evidence to support her claims. In addition, the IJ found that
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there were unexplained inconsistencies between Chen’s hearing testimony and her asylum

application, which undermined her credibility. Chen appealed the decision and, in May

2009, the BIA dismissed her appeal. The BIA agreed with the IJ that Chen failed to

provide “reasonably available corroborative evidence” in support of her application for

asylum. (A.R. 4.) The BIA also agreed with the IJ’s adverse credibility ruling, finding

that there were “valid material omissions” between Chen’s hearing testimony and her

asylum applications. (Id. at 3.) Chen filed a timely petition for review. 

II.

This Court has authority to review final orders of removal. See 8 U.S.C. §

1252(a). “[W]hen the BIA both adopts the findings of the IJ and discusses some of the

bases for the IJ’s decision, we have authority to review the decisions of both the IJ and

the BIA.” Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004). We review factual

findings, including adverse credibility determinations, for substantial evidence. See Butt

v. Gonzales, 429 F.3d 430, 433 (3d Cir. 2005). An adverse credibility finding must be

upheld “unless any reasonable adjudicator would be compelled to conclude to the

contrary.” Berishaj v. Ashcroft, 378 F.3d 314, 322 (3d Cir. 2004) (quoting 8 U.S.C. §

1252(b)(4)(B)).

Because Chen filed her application for relief after the enactment of the REAL ID

Act of 2005, the BIA’s credibility determinations are governed by the Act. See Chukwu

v. Att’y Gen., 484 F.3d 185, 189 (3d Cir. 2007). Under the REAL ID Act, an IJ may base
While acknowledging the REAL ID Act credibility standard, Chen appears to 2

argue that this Court should apply the pre-REAL ID Act credibility standard as set out in

Secaida-Rosales v. INS, 331 F.3d 297 (2d Cir. 2003), a pre-REAL ID Act case. (Pet. Br.

9-10.) Chen also cites Kadia v. Gonzales, 501 F.3d 817, 821-22 (7th Cir. 2007), to

support her argument that omissions must be considered in the totality of the

circumstances. (Pet. Br. 10-11.) Kadia is also a pre-REAL ID Act case, and the Seventh

Circuit explained that, under the REAL ID Act, an immigration judge should not base an

adverse credibility decision on minor inconsistencies or “discredit otherwise persuasive

testimony because of a misspelling in the asylum application.” Kadia, 501 F.3d at 822. 

However, we agree with the BIA that Chen’s omissions are not minor and that they go to

the heart of her claims. 

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his credibility determination on observations of the applicant’s demeanor, the plausibility

of the applicant’s story, and on the consistency of the applicant’s statements. See INA § 

208(b)(1)(B)(iii); Gabuniya v. Att’y Gen., 463 F.3d 316, 322 n.7 (3d Cir. 2006). 

The IJ found Chen’s testimony incredible, particularly because it was not

consistent with her asylum application. Upon review of the record, we find the BIA’s

adverse credibility determination to be supported by substantial evidence. Butt, 429 F.3d

at 433. As mentioned, Chen testified that family planning officials allegedly threatened

her with sterilization three times after her alleged second forced abortion. (A.R. 136-37.)

Chen further testified that she desires to have more children, which she could not do if

sterilized. (Id. at 130.) We agree with the BIA that these prior threats of sterilization are

central to Chen’s asylum claim and that her failure to include them in her asylum

application is significant and undermines her credibility. 

2

Moreover, Chen did not provide a plausible explanation for the omissions. At the

hearing, Chen stated the reason she did not include the incidents in her application was
6

because she felt that she “[did] not have to write too detailed. It might be too

complicated.” (A.R. 137.) In her brief, Chen argues that the omissions were “not

unreasonable” because she anticipated testifying in greater detail at the hearing. (Pet. Br.

at 9.) Such explanations do not compel a different result and are therefore insufficient to

overcome the BIA’s adverse credibility determination. See e.g., Ezeagwu v. Mukasey,

537 F.3d 836, 839-40 (8th Cir. 2008) (upholding adverse credibility finding where

petitioner “forgot” to mention his detention and abuse); Chen, 376 F.3d at 222 (“We are

required to sustain an adverse credibility determination ‘unless . . . no reasonable person’

would have found the applicant incredible.” (citation omitted))

In addition to making an adverse credibility finding, the BIA also concluded that

Chen failed to meet her burden of proof based on the absence of reasonably available

corroborating evidence. The IJ and BIA may expect reasonable corroboration of a claim. 

Abdulai v. Ashcroft, 239 F.3d 542, 554 (3d Cir. 2001). An applicant’s failure to

corroborate may undermine her case if: (1) the facts at issue are facts for which

corroboration may reasonably be expected; (2) the applicant failed to corroborate those

facts; and (3) the applicant has not adequately explained her failure to do so. Id. We find

the BIA’s determination that Chen failed to provide sufficient corroborating evidence is

supported by the record. 

 Although Chen testified that her parents and brother are aware of her experiences

in China, neither provided a letter or affidavit in support of her claims. We agree that it
In her brief, Chen points to an abortion certificate she placed in the record 3

as corroboration of her testimony. (Pet. Br. at 10, 11.) However, the 2005 China Profile

of Asylum Claims and Country Conditions, placed in the record by the IJ without

objection, states that documents appearing to be abortion certificates are documents

“issued by hospitals upon a patient’s request after a voluntary abortion” and are used in

support of requests for sick leave following an abortion. (A.R. 119-20, 171.) Thus, the

certificate alone does not compel the conclusion that Chen, who was underage when she

had the alleged abortions, was subject to an involuntary abortion. See Chen v. Gonzales,

434 F.3d 212, 218-19 (3d Cir. 2005).

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was reasonable for the BIA to have expected corroboration from Chen in the form of

letters or affidavits from family members who are familiar with the events underlying her

asylum application. 

We further agree with the BIA that Chen’s explanations for failing to submit

corroborating evidence with her asylum application are inadequate. When asked by the IJ

why she did not procure a letter from her brother, Chen replied, “it is just easier to talk on

the phone.” (A.R. at 134.) When asked why her parents did not send a letter

corroborating her testimony, she stated that they “always communicate by phone” and that

they “don’t know how to write Chinese.” (Id. at 133.) Although we recognize that it may

have been difficult for Chen to have immediately obtained letters from family members

still living in China, a period of two years passed between Chen’s first appearance and her

merits hearing. Thus, it was not unreasonable to expect Chen to have procured letters

from family members during that time, specifically since Chen admitted that she is in

regular contact by telephone with her parents and brother. Accordingly, we find that the

BIA’s determination is supported by substantial evidence. 

3
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Because Chen did not meet her burden of proof as to her asylum claim, her claim

for withholding of removal necessarily fails, as does her claim for protection under the

CAT. See Yu v. Att’y Gen., 513 F.3d 346, 349 (3d Cir. 2008). Accordingly, we will

deny the petition for review.