2003 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit
12-22-2003 

# Lin v . Att y Ge n U SA P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al D ocke t N o . 02-4587

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Thi s de c i sion i s br ou gh t t o you for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit at V i l l a no va U nive r sit y S choo l of L a

w Di g it al Re posit or y

. It h as be e n a c c e pt e d for inclusion in 2003 D e c i sion s b y a n author i z e d a dmini s tr at or of V i l l a no va U nive r sit y S choo l of L a

w Di g it al Re posit or y

. F or mor e infor m at ion, p le as e c on t a ct Be n j a min . C a rl s on@l a

w . v i l l a no va . e du
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" L in v . Att y Ge n U SA" (2003). 2003 D e cisio n s . P ape r 38. h tt p://d i g it alc ommon s .l a

w . v i l l a no va . e du/thir dc ir c uit_2003/38NOT PRE CEDENT IAL IN THE UNITED STATES COURT OF APPEALS

FO R T HE TH IRD CIR CU IT No. 02-4587 QIU R ONG LI N, Petitioner

v. JOHN ASHC ROFT , Attor ney General of the United States, Respondent

_____________________ On Petiti on for Review of an Order of t he Bo ard o f Imm igration Ap peals (INS No. A 74-323-426) Argued November 6, 2003

____________________ Bef or e: McKEE, SMIT H an d GREE NBERG, Circuit Judges (Fil ed: December 22, 2003) Attorneyfor Peti tioner Gang Zhou [Argued] Suite 1005 277 Broadway New Y ork, NY 10007 Attorney s for Responde nt Joan E. Smil ey [Argued] Richard M. Evans Linda S . Werne ry Willi am C. Minick2

U.S. Department

of Justi ce Office of Immigration Lit igati on Ben Franklin St ation P.O. Box 878 Washington, D.C. 20044

______________________ OPINI ON OF THE COURT

______________________ SMIT H, Circuit

Judge. Petitioner Qui Rong Lin, a nati ve and cit izen of China, applie d for asylum and withholding of removal under the Immigr ation and National ity Act, and for

reli ef under the Unite d Nations Conventi on Against Tort ure and Other For

ms of Cruel, Inhuman or Degrading Treat

ment or Punis hment (here inaft er “Conventi on Against Tort ure” or “CAT”). She clai med that she had been perse cuted on the basis of her poli tica l opini on because she ha d been forced t o abort a pr egnancy . After a hearing, the Immigr ation Judge (“I J”) deni ed Lin’s appl icat ion and concluded that her appli cati on was frivol ous pursuant to 8 U.S.C. § 1158(d)(6) . The Board of Immigr ation Appeal s (“BIA”)

sum ma rily aff

irme d. T his tim ely ap pea l foll ow ed. I. Lin filed an a ppl icatio n fo r asylu m a nd w ithh old ing of r em ova l on July 2 3, 20 00. In respons e to sever al questions on the appli cati on, Lin at tached an uns worn stat ement relat ing , inter alia , that her mother had been forcibly steril ized in 1992, and that she also had b een forced to abo rt a preg nanc y. She ex plaine d that:3

In November 1998, myboyfriend . . . and I wanted to ge t marri ed because I discover ed that

I was pregnant . At that ti me, I was sevent een ye ars ol d and my bo yfriend w as tw enty-one years old . The policy allow s only m en w ith ag e o f a t le as t tw en ty-f

ou r ye ar s o ld an d w om en w ith ag e o f a t le as t tw en tytwo years o ld to reg ister for th e m arria ge w ith th e C hin ese gov ern me nt. Because we did not r each the l egal age for marriage accordi ng [to] t he family planning p olicy, we are not perm itted to register for our m arriage. In January of 1999, the family

planning of

fici als di scovered t

hat I was pregnant. On January16, 1999, a bout one cadr e and five fami ly planning offici als sur

rounded my hous e and I was dragged t o Changle City Hospital to p erfo rm a for ced abo rtion . On Jan uar y 17, 1 999 , I ha d a forc ed a bor tion

. M y bo yfr ien d a nd I w er e s o u ps et t ha t w e lo st o ur ba by. In furt her support

of her cl aim, Lin s ubmitt ed into e vidence, in advance of t he hearing, a cert ific ate which pur ported t o show that she had an abort ion on Januar y 17, 1999. At a hear ing before the IJon December 29, 2000, Li n confirmed t hat she had become pregnant at age 17 and was unmarr ied at the time. Although her initial applic ation di d not include detai ls concer ning how she lear

ned of her pregnancy or what she did befor e the abortion, Lin testifie d that s he lear ned she was pregnant

when she sought medica l att ention in November 1998 at a medicalfacil ity which provided treat ment for minor

ailment s such as col ds. Lin fur ther t esti fied that she and he r boyfriend went i nto hiding upon learning of the pre gnancy and that s he had been app re hen dedbyoff

ic ia ls andfor ced

to und er go t

he aborti on wh en s he h ad r eturnedhome to retriev e som e cloth ing. T he ab ortion c ertificate , Lin tes tified, ha d bee n giv en to h er in China. After

she arr ived in t

he United States, her mother s ent the certi ficat e to her because Lin under stood that she would nee d the certifi cate t o prove that the abortion had bee n pe rfo rme d.4

The Office of the Americ an Consulate General i n Guangzhou investi gated the authent icit

y of t he aborti on certi ficat e and report ed that the “cer tifi cate was fabr icat ed.” Earl T urne r, the A ssistant O ffice r in C harg e, base d his re port o n a letter f rom Ch angle City Hospitalwhich advised t hat the certi ficat e was fabricated becaus e it di d not have a doctor’ s signat

ure and the hospit al did not have Lin’s a

borti on operati on record. An A pril 14, 1998 S tate Depa rtment Profile of Asylum C laims and C ountry Co ndi tion s (“C oun try Co ndi tion s R epo rt”) w as a dm itted into evid enc e at th e IJ h earin g. It di scussed as ylum claims bas ed on China’s coe rcive f amily planning pol icie s and stated that t he centra l Go vern men t does not au thorize physical force to mak e peo ple subm it to abo rtion or sterilization , but the re are re ports th at this co ntinue s to occur in s ome rural areas as localpopulati on authori ties strive to meet populati on target s. Chines e offici als acknowle dge privately that f orced aborti ons and ste ril izat ions stilloccur in areas where fami ly planning per son nel m ay be une duc ated and ill-train ed. With respec t to t

he Fujian Pr ovince, from which Lin emigrated, the repor t indi cated t

hat the U.S. Consul ate Generalin Guangzhou was “not aware of any forced abortions of ill egitimate chil dren or chi ldren of c ouples wit h an earl y marriage (but could not e xclude the possibili ty ).” The CountryConditions Report furt her st ated that The U.S. Embassyand Consulate s General ar e unaware of any so-cal led ‘abort ion certific ates, ’ which ofte n are pres ented as part of as ylum applications as evi dence of a forced abortion. According to Em bassy offici als, the only

document that

might res emble such a cer tifi cate and result in confu sion is a docu ment issued by hospitals upon a patient’s5

request after a voluntaryaborti on. This c erti ficat e is use d by patients as evidence t o request

2 weeks of sick l eave after an aborti on has been per for me d, a r igh t pro vid ed b y the la w. Documentation of t

his nat ure, ac cording t o the Country Conditions Report, was “subject to widespr ead fabri cati on and fraud.

. . . The exist ence of thi s fraud has been esta blis hed by di rect investi gation by U.S. offi cers i n the Consulat es General in Guangzhou and Sh ang hai.” Forced abortions an d sterilizations, the Coun try Conditions R eport stated, we re prohibi ted, “but offi cial s acknowledge that the re may be inst ances of forc e being used. ” Reportedl y, offici als who employ this practi ce are di scipl ined and under go retr aining, but the r epo rt co nce ded that n o da ta ha d be en s upp lied t o ve rify tha t asse rtion

. At the conclusion of t

he heari ng, the IJ rende red an oraldecisi on, ide ntifying thr ee bases for finding that L in’s testimony was n ot credible. First, the IJ noted there were inconsistencies bet

ween her testimony and her asylum application. The inconsistencies , accordi ng to the I J, were Lin’ s failure to r efer t o certa in deta ils in her as ylum application, specifi call y her

treat ment in November 1998 at t he facil ity

where she learned she was preg nant a nd th e fac t that she wa s in hid ing w ith her b oyfriend until sh e return ed ho me in Jan uar y to ob tain s om e clo thes

. As a second basi s for fi nding that Lin was not cre dible, the IJlis ted cer tain “inconsistenc ies” betwe en Lin’s story and th e Cou ntry Conditions R eport. In particular, the IJobserved t

hat the report

indicated that abortion certific ates were provided only for1 The adjustment of status under § 125 5(i) en ables a prev iously inelig ible alien to m ain tai n l aw fu l st atu s. F ra go m en , A us tin , T ., Jr ., S tev en C . B ell & Th om as E. M os ele y, Immigration Legi

slat ion Handbook , § 3.2 ( 200 0, D atab ase upd ated Ap ril 20 03)

. 6 volu ntary pro cedu res, no t force d abo rtions a s Lin allege d. Th e IJ also poin ted ou t that, accordi ng to the CountryConditions Report, there were signi ficant financi al dis incent ives for havin g illegitimate children an d there w as nothing in the report to sug gest that there was “any general poli cy t o abort i llegitimat e chil dren.” Finally , the IJ consi dered the Consulate’ s investigative report which concluded t

hat Lin’ s abort ion certific ate was fab ricat ed. After discu ssing these “inc onsistencies” an d the Co nsulate’s investigation, the IJ concluded t

hat the aborti on certi ficat e was fraudulent . He also found t hat Lin had “deli berate ly

lied” and denied her

applic ations for asylum and withhol ding, a s well as her request for rel ief under

the CAT. In addition, t he IJ decl ared that Lin’s asy lum app licatio n w as f

rivo lou s un der 8 U .S.C . §11 58( d)(6 ). Lin appeale d to the BIA. During the pende ncy of t hat appeal , she married Zi Ji an Lu, an ali en who had been granted t he stat us of permanent

resi dent. In Februar

y 2001, Lin fil ed an I-130 petiti on with Immigration and Nat urali zati on Service. In November 2001, she gave birth t o a baby girl, Anna Lu. On April 19, 2002, Zi Jian Lu was natural ized and became a citi zen of the Unit ed State s. Lin’ s I-130 petiti on was approved and she then f

iled an applic ation wit

h the Immigr ation and Naturali zati on Service f or an adju stm ent o f he r statu s un der 8 U .S.C

. § 1255(i). 17

The BIA summarilyaffirmed t he IJ’s decisi on on December 3, 2002. Li n file d a timely petitio n fo r review , challen ging both the IJ’s d enial o f her a pplica tion an d his dete rmin ation that s he filed a friv olo us a sylum app licatio n. II. The IJ had jurisdictio n pu rsuan t to 8 C .F.R. § 208 .2(b). T he B IA h ad ap pellate juri sdict ion pursuant to 8 C. F.R. § 3. 1(b). We exercise appe llat e juri sdict ion over t he BIA’s order pur suant t o § 242 (b) o f the Imm igra tion and Na tion ality A ct. 8 U .S.C . § 125 2(b); see a lso A bdu lai v. As hcro ft , 239 F.3d 542, 548-49 (3d Cir . 2001). When the BIA defers to t

he IJ, however, “we must re view the deci sion of t he IJ. ” Gao v . I

NS , 299 F.3d 266 , 271 ( 3d C ir. 2002 ); Abdulai , 239 F .3d at 5 49 n .2. W e limit ou r review to dete rmin ing wh ethe r the IJ’s find ing s are sup por ted b y subs tanti al ev iden ce. Gao , 299 F.3d at 272. “Substant ial e vidence i s more than a mer e scintill a and is s uch rele vant evidence as a reasonabl e mind might ac cept as a dequate t o support a conclusi on.” Sen athi rajah v . I

NS , 157 F.3d 210, 216 (3d Cir. 1998). We may r everse only where t he evidence compel s a conclus ion contrary to that of the IJ . 8 U.S.C. § 1252(b)(4) (B) (“t he administ rati ve findi ngs of fact are concl usive unl ess any reasonabl e adjudi cator would be comp elled to conclu de to the co ntrary”). The subs tantial ev idenc e stand ard als o app lies to ad verse credib ility dete rmin ation s. Gao , 299 F .3d at 2 72. A ccord ingly, an ad verse credib ility finding s hou ld not b e distur bed “ unles s ‘any rea sona ble ad judica tor w ould be co mp elled to conc lude to8

the contrary .’” Id. (quoti ng Sen athi rajah v . I NS , 157 F.3d at

216). Speci fic re asons should b e given fo r finding a w itness not credible an d those “rea sons m ust bear a legitimate nexus to the f inding. ” Balasu bra manr im v . I NS , 143 F.3d 157, 162 (3d Cir. 1998). “The federalasy lum stat ute confer s discr etion on t he Attorney

General t o grant asylum to an ali en applicant ‘if t he Attorney General determines that such al ien is a refugee wit

hin the meaning of secti on 1101(a)( 42)(A).’ ” Abd ille v. Ash croft , 242 F.3d 477, 482 (3d Cir . 2001) ( quoting 8 U.S. C. § 1158(b)( 1)). Section 1101( a)(42) (A) defines “refugee,” in relevant part , as any per son who is outs ide any country of such pers on’s nat ionality . . . and wh o is un able o r unw illing to re turn to, a nd is u nable or un willing to ava il himself or

hersel f of the protecti on of, that countr y because of pers ecuti on or a well- founded fear of per secuti on on account of r ace, r eligi on, nationa lit

y, membership i n a parti cular s ocialgroup, or politicalopinion. 8 U .S.C. § 110 1(a)(4 2)(A ). This d efinition furthe r spec ifies tha t perse cution on th e bas is of p olitical op inion in clude s any pe rson w ho h as be en “forced to abo rt a preg nanc y or to und ergo invo luntary steriliza tion, or w ho h as be en pe rsecu ted fo r failure or ref usal to undergo such a pr ocedure or for other r esistance to a coe rcive popul ation c ontrol program” or who has a “wel l-founded fe ar that he or she wil l be forc ed to undergo s uch a procedure or

subject to pers ecuti on for such fai lure, refusalor resi stance . . . . ” Id. The burden is upon the appl icant to est ablis h that s he “quali fies as a refugee under the stat ute. ” Ob ianu

ju Ez eagw una v. Ash croft , 301 F.3 d 11 6, 12 6-2 7 (3 d C ir. 20 02)

.9

A request for

asy lum is s eparat e and distinct f rom an appli cati on for withhol ding of removal. Because the s tandard f or obtaining a grant

of withholding is more demandi ng than th e stand ard fo r asylum , “[i]t follo ws . . . tha t an ap plican t wh o fails to prov e ‘w ellfo un de d fea r’ i n h is q ue st for as ylu m w ill s im ila rly b e u na bl e to pr ov e ‘ cle ar pr ob ab ilit y’ with res pect t o withholding of deportation. ” Jan usiak v . I NS , 947 F.2d 46, 47 (3d Cir. 199 1); see a lso Lu kwa go v. A shcro ft , 329 F.3 d 15 7, 18 2 (3 d C ir. 20 03)

. Withholdi ng under the I mmigrati on and National ity Act is di fferent

from wit hho ldin g un der the C onv entio n A gain st T ortu re. Lukwago , 3 29 F .3 d a t 1 82. The CAT requir es that

the al ien show “that

it i s more li kely

than not t

hat he or s he would be tort ured if r emoved to the pr oposed countr y of r emoval.” 8 C. F.R. § 208. 16(c)( 2). The tort ure, however, need not be i nflic ted “on account of any pr otect ed ground.” Lukwago , 329 F.3 d at 1 83 ( citin g 8 C .F.R

. § 208 .18( a)(1 )). III. Lin submit s that

the IJ ’s deci sion denying her as ylum claims was not supporte d by sub stan tial ev iden ce b eca use it relie d to a larg e de gre e on the C ons ulate ’s inv estig ation

. The result s of the Consul ate’s invest igati on and the suppor ting document ation s hould not have been int

roduced, in Lin’s vi ew, because t hey were unr elia

ble and they vi olate d her due process right s. As support, s he cit es our re cent deci sion i n Ezea gw una v. Ash croft , 325 F.3 d 39 6 (3 d C ir. 20 03)

. In Ezeagwuna, we concluded that the admiss ion of the resul ts of an i nvesti gation10

by t he State Department r egarding t he authent icit

y of cer tain doc uments offer ed by t he petition er viola ted he r due proc ess righ ts beca use th e letter fro m the State D epartm ent did not satisfy the standards o f reliability and trustw orthiness. 325 F .3d at 408. W e were troubl ed by t

he foll owing: (1) the INS provi ded the al ien with t he State Department l ette r calling her doc umen ts into question on ly several days before the he aring; (2) the letter, which contai ned multiple hear say , did not provide informati on from anyone with dir ect knowledge of the i nvesti gation; (3) there was too much re lianc e by t he INS on the prest ige of the State Department’ s letterhea d and seal; and, (4) the le tter fail ed to provi de any i nformati on regardi ng how the investigati on was conducted. We declared that the “nature of the purpor

ted ‘investi gation’ is a matter of pure conj ecture and it c an provide no b asis for a find ing of falsif icatio n on the p art o f M s. O bian uju .” 32 5 F .3d a t 40 8. Some of the evidentiary problems we identifie d in Ezeagwuna are also prese nt in the investigation of

Lin’s abo rtion certificate. First, the Consulate’s inv estigative report contai ns multiple hear say , none of which pr ovides any firs t-hand knowledge of the invest igati on. The ini tialinvest igati on was conducted by an unnamed person and trans mitt ed to a Dr. Qie . Dr. Qie t hen noted hi s conclus ions i n a letter t o INS investi gator Susanna Liu from the neighboring province of Guangzhou. Liu then t ransmit ted an “unoffici al translation” of Dr. Qie ’s repor t to Mr. Tur

ner, t he Assist ant Officer

in Charge in Guangzhou. Turner

advised Susan Roy, in the Newark office of INS, of the r esult s of the inve sti gation. Roy’s l ette r was conside red by the IJ . Because Liu i s from Guangzhou2 W e n ot e th at t he C on su lat e’ s in ve sti ga tio n w as no t au th en tic ate d a s re qu ire d b y 8

C.F .R. § 287 .6 . A uthe nt ic at io n, how ev er , w oul d no t h av e r eme di edth e d ef ic ie nc ie s we describe. 11 Province, it i s unli kely

that s he inte racte d personal ly with Dr. Qie in the Fuji an Province and nothing in the rec ord suggest s such dir ect cont act. Accordingly , the IJ would have had no b asis t o co nclu de th at L iu h ad a n op por tun ity to as sess Dr . Qie ’s cre dib ility. In addition to t

he multiple hear sayproblems, the repor t and it s support ing doc um enta tion are d evo id o f an y desc riptio n of how the in ves tigat ion wa s co ndu cted

. There was no thing before the IJ to suggest who actually searched the hospital records, whe n the record s were c hecked , what ho spital records w ere review ed and whe ther there

we re an y iden tifying crite ria -- o ther than Lin ’s na me -- us ed in sea rch ing the r eco rds. Without more i nformati on, a fact finder c ould only speculat e about the reli ability of the Consulate’ s investigati on. 2 For these rea sons, we conclud e that the Co nsulate’s report cannot be cons idered a s subst antia l evide nce for the IJ’s decisi on. The IJ’s decision is al so unsupported by what he characterized as “inconsist encies” betwe en Lin’s as ylum application an d her testimon y. These “incon sistencies” we re nothing more t

han omissi ons of detai l, s upply ing background informati on for the he art of her cla im that

she was forced t o undergo an abortion. The abs ence of thes e detai ls i n her asy lum appli cati on neithe r alt ers the nature of Lin’s cl aim that she was subjec ted to a forced abortion nor embel lis hes it to such a degr ee that

it may be consider ed inconsi stent with her t esti mony before the IJ . As a consequence , the omissi on of these de tail s from12

her asylum application cannot constitut e substantialevidence for the IJ’s adverse cred ibility de term inati on. Gao , 299 F.3d at 272 (recogni zing that incons ist encies be aring on the heart of an al ien’s asy lum claim may be subst antia l evide nce, but minor inconsistencies t

hat do not relate t

hereto are not an adequate basis for an adverse credibility finding). Despite t he foregoi ng defici encies in the IJ ’s cre dibil ity analy sis, the IJhad an appr opriate basis to reject L in’s testim ony bec ause it was at odd s in som e resp ects w ith the Country

Conditions Report. Although the Consul ate’s invest igati on by i tsel f may not have afforded a s uffici ent basi s to conclude that Lin’s abor

tion ce rti ficat e was fabricated, the C oun try Co ndi tion s R epo rt did cas t do ubt on w heth er th e ce rtific ate w as g enu ine. The Co untry Conditi ons Report indicated that certificates were provided for those undergoing voluntary

aborti ons, t

hereby undermining Li n’s cl aim that she received her certificate whe n she w as forced to abort her pre gnanc y. In addition, the Coun try Conditions Report confi rmed that documents regarding bi rth cont rol measur es were often fabric ated i n the Fuzhou are a, the area named by Lin in her

asy lum appli cati on as her native region. As we noted in Ka yem be v. A shcro ft , 334 F.3d 231, 235 -36 (3d C ir. 2003), a Cou ntry Conditions R eport ma y constitute substantial evidenc e to suppo rt an agenc y’s determination . Thus, w e conclud e that there w as substantial evide nce to sup port the IJ’s adverse cr edibil ity

determi nation and his deni al of Lin’ s clai ms for asy lum, withholding of r emova l and r el ie f und er t he CAT.3 We note that t he government’ s brie f completely fai led to a ddress Li n’s argument that the I J erre d in find ing that h er ap plica tion wa s friv olo us. 13 IV. Our conclusion that there was substantial evi dence to support the IJ’s adverse credib ility determin ation d oes n ot, how ever, re solve the issu e of w hethe r the IJ e rred in finding that L in’s asylum application w as frivolous u nder § 1158(d )(6). 3 Section 11 58(d)(6), w hich w as enacted as part of the Illegal Im migration R eform and Immigrant Respon sibili ty Act of 1996 (IIRIRA), provides: If the Attorney

General det ermines t

hat an al ien has knowingly made a frivol ous appli cati on for asylum and the al ien has r eceived t he notic e under parag raph (4)(A ), the alien shall be perm anen tly ineligible for an y benefits under thi s chapter , effective as of t he date of a final det erminat ion on such app licatio n. 8 U .S.C . § 11 58( d)(6 ); Pu bl. L . 104 -20 8, D iv. C , Title VI , § 60 4 (S epte mb er 3 0, 19 96)

. As the Immigration Legi slat ion Handbook

exp la in s, th is is “on e of th e mos t e xtre me provisi ons in the IIRIRA. The provi sion per manently bars an al ien from re ceivi ng any nonimmigrant

or immigrant benefi ts once i t is tri ggered. Moreover , the bar may not be waived under any

circumst ances.” Fragomen, Austi n, T., Jr. , Steve n C. Bell & Thomas E. M ose ley, Immigration Legi slat ion Handbook , § 7:95 (200 0, D ataba se up dated Ap ril 2003). “The bar

covers any

benefit under the INA, includi ng immigrant or nonimmigrant entry . . . .” Id. § 7:105. Thus, this exclusi on preclude s an ali en from ever obt aining r elie f under the Act

by means of a

subsequent

applic ation or

even an adjus tment of status of t he14

type Lin is seeking u nder § 1255. Although “frivolous” i s not defi ned by t he IIRIRA, impl ementing r egulat ion 208.20 set s forth certa in cri teri a which must be found befor e an asy lum appli cati on may be de termin ed to b e frivo lous. It p rovid es, in rele vant p art, that: an ap plican t is subje ct to the prov isions o f sectio n 20 8(d)(6 ) of the Ac t only if a fi nal order

by an i mmigrati on judge or t he Board of Immigration Appeals speci fical ly

finds t hat the alie n knowingly file d a frivol ous asy lum applic ation. For purposes of this secti on, an asylum appli cati on is fr ivolous if any of its mate rial elem ents is d elibera tely fabrica ted. Su ch fin ding shall only be made if the immigrat ion judge or the Board i s sati sfied t

hat the applic ant, during t

he course of t

he proceedi ngs, has had suffici ent opportuni ty

to account

for any discr epancies or implaus ible a spects of the claim

. 8 C .F.R . § 20 8.20 (20 00) (he rein afte r cite d as “R eg. § 208.20" ). The “knowingly ” requir ement contained in both t he stat ute and the regulation, connotes that a frivolous findi ng may not be made simply on the basis of an adverse cred ibility de term inati on. 8 C.F .R. § 115 8(d )(6); Re g. § 208.20. Frivolous ness requires more. Su ch a findin g may be m ade on ly when: (1) som e material aspe ct of the alien’s claim is false o r has b een falsified ; (2) the a lien kn ew , at the tim e of filing, that th is mate rial aspe ct of h er claim wa s untru e; and (3) the alien, af ter a su fficien t opp ortun ity to do so , failed to satisfy the IJ that an y discrep ancie s or im plaus ibilities w ere no t the resu lt of d elibe rate fabr icatio n. R eg. § 208.20. In other words, the fact finder may not consi der4 In enumerat ing the e lements on whic h a findi ng of frivol ousness must be predic ated, we rely principally

upon the language of § 115 8(d )(6) a nd R eg. § 208.20. The l imit ed caselaw on this i ssue has foc used on whether a pe titioner was afforded suffici ent opp ortu nity to e xpl ain th e dis crep anc ies a nd i mp laus ible a spe cts o f his or h er cla im. See Far ah v. A shcro

ft , __ F.3d __, 2003 WL 22682434 (9th Cir. Nov. 14, 2003) (re versi ng determi nation t

hat the petitioner’ s appli cati on was frivol ous because t he peti tioner

had not b een g iven s uffic ient op portu nity to exp lain the discre panc ies in the record ); Efe v. Ash croft , 293 F.3d 899, 907 (5th Cir. 2002) (affirming finding of frivolousness because the alien had failed “ to take adva ntage of the amp le opp ortun ity to clarify his contra dictory testim ony”); Barreto- Claro v. U.S. AttorneyGeneral , 275 F.3d 1334, 1338- 39 (11th Cir . 2001) ( affirmi ng finding by the BIA that

the pet iti oner’s a sylum application was f rivolous inasm uch as the p etitioner had con ceded d uring his testimon y before the IJ that he had k now ingly ma de m aterial fa bricatio ns in a nsw ering s evera l ques tions o n his first a sylum app licatio n). 15 an adverse credibilit

y determinat ion as coextensive with a finding of frivolousness. 4 Although he m ay look to t he same evidentiary recor d as a basis for both adverse credibi lit y and frivolous ness det erminat ions, the IJmust make separate and di sti nct rulings. With respect to the second prong of this test , we emphasize that the alien must know of the false hood at the time she f iled he r appli cati on. This r equirement , in our view, i s consis tent wit

h the st atutor

y l anguage which speci fies t hat the “ali en has knowingly

made a fri volous application for asyl um . . . .” 8 U .S.C

. § 115 8(d )(6). Reg ulation 208 .20 m aintain s this sam e requ ireme nt, prov iding th at § 1158(d )(6)’s pe rm an en t b ar ap pl ies if t he re is a fin di ng th at t he “a lie n k no w in gl y fil ed a fri volous asylum appli cati on.” In our vi ew, if a fac tfinde r has det ermined that an al ien knew at t he time she f

iled an applic ation t

hat some material a spect of he r claim was untrue, t hen the5 Lin’s couns el conceded at oralargument that the notice requir ement of § 1158(d)(4)

was met. Thus, we do not consider whether the government’s boiler plate notice in the asy lum appli cati on was suffici ent to c omply wit h the st atutor

y r equirement

of § 115 8(d )(4). Compare Barreto-Claro , 275 F.3d at 1337 n.5, 1339 n. 10 (noti ng that petitio ner

re ceivedtwo not ic es warni ng h im about t he p ermane ntbar

re sulti ng f

ro m a finding that an application w as frivolous, as w ell as an oral w arning from the IJ describing the conseq uences o f a frivolous application). 16 applic ability

of § 1158(d)(6) ’s permanent bar is neithe r excess ive nor ext reme. I t is an appr opriate sanc tion fo r und ertakin g to m anipu late the im migra tion system from the start, conduct which i s fundamental ly differe nt from offer ing tes timony or exhibi ts, once the process is un derwa y, which are no t credited by the factfinde r. With thi s background, we consider Li n’s chal lenge t o the IJ ’s fi nding of frivolousness. 5 Inasmuch as t he implement ing regul ation r equires that a frivol ous ap pl ic at io n i s o ne inwhi ch “a ny of it s mate ri al el eme nt s i s d el ib er at el yfabr ic at ed ,” we

rev iew this factu al de term inati on e mp loying the fam iliar su bsta ntial evid enc e sta nda rd. See 8 U.S.C. § 1252(b) (4). Whether the fa ctualfindings by t he IJ ar e legal ly

suffici ent for a co nclu sion of f

rivo lou sne ss, h ow eve r, is a q ues tion of la w s ubj ect to plen ary rev iew

. Barreto-Claro , 275 F.3d at 1338. He re, the f

irst pron g of

our tes t require s that so me m aterial as pect o f Lin ’s claim was false or

falsi fied. The IJ’s f

inding of f

rivol ousness was base d predominant ly upon his det erminat ion, c onsist ent with t he Consulate ’s inve sti gation, that t he aborti on certi ficat e had been fabri cated. The Consulate’ s investigati on, as we have expl ained abo ve, w as u nre liabl e. It ca nno t, ther efo re, su ppo rt the IJ’s find ing of f rivo lou sne ss.6 Because we conclude t hat substantia l evide nce is l acking for the IJ ’s det erminat ion that t he aborti on certi ficat e was fabricated, we need not consi der whether Li n was afforded, “during t

he course of t

he proceedi ngs,” a s uffici ent opport unity to expla in the disc rep anc ies o r imp laus ible a spe cts o f he r clai m a s req uire d by R eg. § 208 .20. 17 With out the bene fit of th e Co nsula te’s rep ort, the G over nm ent’s o nly evide nce te ndin g to show that t

he aborti on certi ficat e was fabricated is the Country Conditions Report. That report, how ever, cuts both w ays. Certain aspects, as w e observe d in conc luding that there was substantial e vidence t o support t he IJ’s denialof Lin’s cl aim, cas t some doubt on t he genuine ness of the certificate and L in’s credibility. Other statements in the C ountry Con ditions Rep ort, howe ver, are consistent w ith Lin’s testimony. In discussing China’s coerci ve family

planning pol icy , the report acknowledged that

some forced abortions contin ued to occu r in rura l areas. T he rep ort des cribed the C hang le area , wh ich w ould include the hospitalwhere Lin claims to have been subjected to a forced abortion, as a rural area. Thu s, the Cou ntry Conditions R eport acco unts for an aspect of L in’s test imony found by

the IJto have l acked credence , and that repor t cannot establ ish, without more, that t

he aborti on certi ficat e was fabricated. We conclude that the IJerred in his applic ation of § 1158(d)(6) and we reverse t hat det erminat ion. 6 In sum, t he IJ’s denialof Lin’s appl icat ion for as ylum, withhol ding of removaland relie f un der the C AT wa s ap pro pria te an d w e w ill affirm t hat p ortio n of the I J’s d ecis ion

. We reverse, however, with respect to the IJ ’s det erminat ion that Lin’s appl icat ion was fr iv ol ous . A cc or di ngly , w e g rantLi n’ s p et itio n f orre vi ew.18 ______________________________________ TO THE C LERK: Please fi le the foregoing Opini on. By the C ourt, /s/ D. Brooks Smith Circuit Judge19