*

The Honorable David D. Dowd, Jr., Senior United States District Judge for the Northern District

of Ohio, sitting by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 09a0212a.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

SHAN SHENG ZHAO, 

Petitioner,

v.

ERIC H. HOLDER, JR.,

Respondent.

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No. 07-4117

On Appeal from the Board

of Immigration Appeals.

No. A76 513 761.

Submitted: October 28, 2008

Decided and Filed: June 16, 2009 

Before: MARTIN and GILMAN, Circuit Judges; DOWD, Senior District Judge.*

_________________

COUNSEL

ON BRIEF: Oleh Roman Tustaniwsky, LAW OFFICES, New York, New York, for

Petitioner. John W. Blakeley, Aviva L. Poczter, UNITED STATES DEPARTMENT OF

JUSTICE, Washington, D.C., for Respondent.

_________________________

AMENDED OPINION

_________________________

DOWD, Senior District Judge. Shan Sheng Zhao (Zhao) seeks review of the

Board of Immigration Appeals’ (BIA) decision denying his applications for withholding

of removal for fear of persecution pursuant to section 241(b)(3)(B) of the Immigration

1
No. 07-4117 Zhao v. Holder Page 2

1

The Immigration and Nationality Act of 1952 (the Act or the INA) is codified in Title 8 of the

United States Code. Withholding of removal is set forth in section 241(b)(3)(B) of the Act.

2

The CAT is a United Nations treaty signed by many nations in 1985 in “recognition of the equal

and inalienable rights of all members of the human family.” The Foreign Affairs Reform and

Restructuring Act, enacted by Congress in 1998 (FARRA), contains a provision that executes Article 3

of the CAT. Both Article 3 of the CAT and withholding of removal under section 241(b)(3)(B) of the Act

are addressed in Section 1208.16 of Title 8 of the Code of Federal Regulations (C.F.R.): “Withholding of

removal under section 241(b)(3)(B) of the Act and withholding of removal under the Convention Against

Torture.” Under 8 C.F.R. § 1208.16(b), the applicant bears the burden of proof that he is eligible for

withholding of removal under section 241(b)(3)(B) of the Act. Under 8 C.F.R. § 1208.16(c), “Eligibility

for withholding of removal under the Convention Against Torture,” the applicant bears the burden of proof

to establish that he would be tortured if removed to the proposed country of removal. Both sections

establish specific guidelines for evaluating the application, including an assessment of the applicant’s

credibility.

and Nationality Act (the Act or the INA), 8 U.S.C. § 1231(b)(3)(A),1 and for

withholding of removal for fear of torture pursuant to Article 3 of the Convention

Against Torture (CAT).2 Zhao argues that the BIA erred by: (1) adopting and affirming

the Immigration Judge’s (IJ) finding that Zhao was not credible; and (2) denying Zhao’s

applications for withholding of removal under the Act and the CAT. For the following

reasons, we affirm the decision of the BIA.

I. BACKGROUND

Zhao, a citizen of the People’s Republic of China, illegally entered the United

States in February 1995. On January 31, 2003, almost eight years after Zhao’s arrival,

the Department of Homeland Security initiated proceedings against Zhao to remove him

to his native China, citing the violation of 8 U.S.C. § 1182(a)(6)(A)(i), which requires

aliens entering the United States to be admitted or paroled. An alien who is present in

the United States without being properly admitted or paroled is inadmissible as a citizen.

On February 18, 2005, Zhao filed an application for withholding of removal

under 8 U.S.C. § 1231(b)(3)(A). This provision prohibits the Attorney General from

removing an alien if the Attorney General decides that the alien’s life or freedom would

be threatened in that country because of the alien’s race, religion, nationality,

membership in a particular social group, or political opinion. See Ka v. Gonzales, 236

F. App’x 189, 191 (6th Cir. 2007). Zhao’s application for withholding of removal under

8 U.S.C. § 1231(b)(3)(A) was based specifically on a fear of persecution arising from
No. 07-4117 Zhao v. Holder Page 3

3

Two remedies are available to applicants claiming fear of persecution if returned to their native

countries: asylum and withholding of removal. If the alien applies within a year, he may seek asylum. In

his application, Zhao claimed that his attorney had applied for asylum within a year of his arrival, but “they

could not find my file.” Ultimately, his attorney conceded at his removal hearing that Zhao was not

eligible for asylum and in his appellate brief conceded likewise that this Court could not review any claim

for asylum as both the IJ and the BIA denied the claim as time-barred. Therefore, the only remedy

available to Zhao for a claimed fear of persecution is withholding of removal.

4

The Court’s research revealed mixed results. According to Article Six of the Marriage Law of

the People’s Republic of China, “In order to get married, the man shall not be younger than 22 years old

and the woman shall not be younger than 20. Late marriage and late child birth shall be encouraged.”

(From “Marriage Law of the People’s Republic of China,” available at

http://www.helplinelaw.com/law/china/marriage/mlaw.php). The Court’s research also revealed that

couples must obtain a marriage permit before they can obtain a birth permit. “Early marriage” occurs when

a woman under 20 years old marries a man less than 22 years old. If the government finds out that the wife

is pregnant, it will fine the couple 10,000 Yuan and immediately ask for abortion and sterilization. (Forced

Abortion and Sterilization in China: The View from the Inside: Hearing Before the Subcomm. on

International Operations and Human Rights of the Comm. on International Relations, 105th Cong. 29

(1998) (paraphrased testimony of Harry Hongda Wu, Executive Director, Laogai Research Foundation)

available at http://commdocs.house.gov/committees/intlrel/hfa49740.000/hfa49740_0f.htm).

However, according to an article in the British newspaper “The Independent,” the actual

marriage age may be older in some places. “With the marriage age in urban areas set around

25 years old, the first generation of ‘one-child’ couples is starting to emerge.” (Lorein Holland,

China Birth Rate Hit By Dragons, The Independent, February 1, 2000 at

http://www.independent.co.uk/news/world/asia/china-birth-rate-hit-by-dragons-724693.html).

his opposition to China’s coercive family planning policies after his wife’s forced

abortion.3

Zhao also applied for withholding under the CAT. See 8 C.F.R. § 1208.16(c).

According to this provision, an applicant is eligible for withholding of removal if he can

show it is more likely than not that he would be tortured if removed to the proposed

country of removal. Zhao claimed fear of torture based on “the same explanation in

question one” (his opposition to his wife’s forced abortion).

A. Summary of Zhao’s Application for Withholding under the Act and the

CAT

According to Zhao, his wife, Qing Yang, was born on October 22, 1975. They

met when they were seventeen years old and fell in love. He describes having a

traditional marriage on July 15, 1993 (without civil registration) with the consent of his

father. His wife became pregnant five months later, in December of that year. Zhao

stated that, according to “previous China family planning policy,” you have to be

twenty-five or older to have a baby, and they were not old enough to obtain birth

permission.4

 In “early February 1994,” the “government’s officer knows (sic) this news.
No. 07-4117 Zhao v. Holder Page 4

5

RMB is the abbreviation for “Ren Min Bi,” or Yuan; approximately U.S. $285.00.

6

A “snakehead,” in criminal slang terms, is a human smuggler. Federal Bureau of Investigation,

The Case of The Snakehead Queen; Chinese Human Smuggler Gets 35 Years, FBI Headline Archives

(March 17, 2006), available at http://www.fbi.gov/page2/march06/sisterping031706.htm.

They come to my house to take my wife away. We had a big fight. I tried to stop them

to touch my wife, so they pushed and hit me.” Zhao continues by saying he could not

stop them from taking his wife to the local hospital where “she was forced to take an

abortion.” He reports that he was detained in the police department for a month because

he did not agree with the action the Chinese government took against his wife forcing

her to have the abortion. He was fined 2000 RMB for release.5

Zhao describes that his wife was depressed for a long time after she lost her baby

and wanted to stay with her mother. Zhao felt “helpless, hopeless and angry.” He

recounts further that, one day, when he was walking down the street he “happened to see

the officer” who took his wife away. He describes that, “I was thinking about my baby

and my poor wife and I can’t help myself . . . I caught the officer and hit him a couple

of times and run (sic) away.” He states that he then went to his mother-in-law’s house

to see his wife and right after he arrived, his “dad called” and told him that “the police

officer came to my house to try to arrest me, so my father told me don’t come back, run

as far as possible.” Since then, Zhao reports on his application, “we are in government’s

‘not decent citizen list.’ We had no future in China. I was running around in my

relatives’ houses for about (sic) year.” Zhao describes that he then “found a snakehead

through a friend of mine” and left his country in February 1994.6

 He reports entering

the United States (Los Angeles) in February 1995 without his wife. Zhao’s application

concludes that if he returned to China, he fears he would be tortured, harmed or

mistreated, specifically, by being jailed by the Chinese government.

B. Summary of Zhao’s Testimony at his Removal Hearing

Zhao’s removal hearing occurred on March 9, 2006, thirteen months after

completing the application. Zhao’s testimony was inconsistent with his application on

several key points.
No. 07-4117 Zhao v. Holder Page 5

First, he testified that the individuals from the “family planning” center came for

his wife to force her to have the abortion on December 23, 1993. Second, Zhao testified

that when he encountered the “family planning” official on the street he “hit him once

and my friend push me away, take me away.” Third, he testified that a female cousin

called him at his mother-in-law’s house to warn him that police had come to arrest him.

Fourth, he testified that in the year between the February 1994 confrontation with the

officer when he “left home” and February 1995 when he came to the United States, he

went to Guangzhou and Shenzhen. He testified that he had stayed with friends in those

cities, and had no relatives in Hong Kong or Singapore. He then testified that he came

to the U.S. from Hong Kong where he had been “sightseeing,” but later testified that he

came to the U.S. from Singapore. Fifth, Zhao failed to testify on direct or crossexamination that he was put on a “not decent citizen list” as stated on his application.

Additionally, Zhao testified that since coming to the United States he married a

woman who was in the process of obtaining her “green card.” At the hearing, he told the

IJ that this woman was three months pregnant.

Zhao provided no corroborating evidence at the hearing. Zhao testified that he

sent an affidavit from his father to his attorney long ago, but at the hearing only provided

a letter, untranslated from his native Chinese, to the IJ. He also testified that he did not

obtain an affidavit from his cousin because “it did not get to my mind at that time.” He

had no proof of his marriage in China or of the abortion.

C. Findings of the Immigration Judge

In her findings and conclusions, the Immigration Judge explained in great detail

the role of the IJ in the credibility determination, the importance of credibility to the

applicant’s burden of proof, and her analysis of the evidence before her.

The IJ elaborated that the credibility of the respondent was of extreme

importance in assessing his clams for relief and protection. Citing In re O-D-, 21 I&N

Dec. 1079 (BIA 1998), she stated, “Before determining whether the applicant meets the

statutory criteria required for withholding of removal under the [Immigration and
No. 07-4117 Zhao v. Holder Page 6

7

The IJ elaborated that “in light of this information, it is difficult for this Court to discern that the

respondent can establish that it is more likely than not that he would be subject to persecution if returned

to China based upon his first wife having purportedly undergone an abortion (despite the fact that this

Court doesn’t have a single piece of evidence to establish even the existence of this first wife, let alone a

pregnancy or abortion).” 

Naturalization] Act and withholding under the Convention Against Torture, this Court

must make a threshold determination of the alien’s credibility.” Citing In re Dass, 20

I&N Dec. 120, 124 (BIA 1989), she explained that the applicant’s testimony could be

sufficient as the sole evidence in support of a claim for relief and protection where it was

“believable, consistent and sufficiently detailed in light of general conditions in the

home country to provide a plausible and coherent account of the basis of the alleged

fear.” Although the lack of corroborating evidence is not necessarily fatal, the IJ

explained, quoting In re B-B-, 22 I&N Dec. 309 (BIA 1998), the applicant had an

affirmative duty to corroborate his claim to the degree he could or otherwise reasonably

explain the failure to do so. Zhao did neither.

The IJ wrote a twenty-three page analysis supporting her finding that Zhao was

not credible. In arriving at her conclusion, she considered: (1) the “rationality, internal

consistency and inherent persuasiveness of the respondent’s testimony” compared to his

written application for relief and found it was not believable or consistent; (2) his failure

to provide corroborating evidence, and found it was not reasonable; and (3) Zhao’s

explanations for the inconsistencies and failure to provide corroboration, and did not find

them convincing. She found that these inconsistencies went to the heart of Zhao’s

claims.

The IJ also explained that, even had she found Zhao credible, she would have

denied his application on the merits. Specifically, the IJ set forth in an additional seven

page analysis that: (1) Zhao could not meet his burden of proof with his general and

meager testimony; (2) China had changed country conditions making it safe for him to

return, as set forth in a U.S. Department of State Country Report on Human Rights

Practices; (3) Zhao could not show fear of persecution in his native Fujian Province

since the 2004 Profile of Asylum Claims and Country Conditions (the Profile) cited only

“isolated cases” of forced abortions and sterilizations there in the early 1990s;7
No. 07-4117 Zhao v. Holder Page 7

(4) Zhao’s claim that he would encounter difficulties due to the child conceived in the

U.S. was too tenuous since, according to the Profile, “couples occasionally seek asylum

based on a claimed fear that an unauthorized child already born in the United States or

one that has been conceived here would prompt difficulties in China . . . [but] there is

no known policy as to such instances;” (5) Zhao’s claimed fear from having “no idea”

what local government would do to him and that he had “nothing left” in China was

vague; and (6) Zhao’s fear, after striking the “family planning” official, was of

prosecution for a criminal offense rather than persecution for political beliefs. Further

undercutting the merits of Zhao’s claim, the IJ found evidence, based on Zhao’s

testimony of unrestricted “sightseeing” in Hong Kong, that he could relocate within

China without fear of persecution.

In conclusion, the IJ stated,

The respondent has not been back to China, if you believe his testimony,

for more than ten years. This Court cannot, on this record, determine that

anyone would seek to target the respondent based upon any past

persecution that he claims he suffered as a result of his wife undergoing

the first forced abortion and his resistence to that or any well-founded

fear of future persecution arising out of any fear he has due to this attack

on this police officer.

Based on the foregoing, the IJ “den[ied] the respondent’s applications for withholding

under the Act and the Torture Convention on the merits.”

D. Findings of the Board of Immigration Appeals

Zhao appealed the IJ’s decision, asserting first that she erred by basing her

adverse credibility finding on “purported inconsistencies and omissions in the record”

when his testimony “did not preclude the possibility that he had suffered from physical

harm by the Chinese officials.” Next, Zhao argued that the IJ violated his “due process

rights” by failing to articulate any legal standards upon which she based her credibility

determination. Finally, Zhao asserted that the IJ’s decision to deny relief based on

adverse credibility was erroneous.
No. 07-4117 Zhao v. Holder Page 8

8

The BIA identified the document as an “asylum application,” but it was an application for

withholding.

9

In re S-L-L- was overruled to the extent it allowed the IJ or the BIA to find an applicant had per

se been persecuted on the basis of the applicant’s spouse’s forced abortion or sterilization. See In re J-S-, 24 I&N Dec. 520, 536-38 (A.G. 2008), discussed infra.

Using a clear error standard, the BIA reviewed the IJ’s factual determinations

and accepted her finding that Zhao was not credible. Citing Sylla v. INS, 388 F.3d 924,

926 (6th Cir. 2004) (holding that an adverse credibility determination must be supported

by specific reasons), the BIA concluded that the IJ’s decision was based on

“conspicuous, inadequately explained discrepancies” in the respondent’s testimony, and

between his testimony and his withholding application and statement.8 The BIA next

rejected Zhao’s assertion that the IJ failed to base her findings on applicable legal

standards. Finally, given Zhao’s lack of credibility, the BIA affirmed the IJ, finding “no

error in the Immigration Judge’s decision denying his application for removal.”

Like the IJ, the BIA found that, even if credible, Zhao could not advance a claim

for withholding of removal based on a fear that an unauthorized child conceived or born

in the United States would prompt difficulties in China. Citing In re J-W-S-, 24 I&N

Dec. 185 (BIA 2007) (concluding that the Chinese Government did not have a national

policy forcing sterilization of parents returning with a second child born outside of

China), the BIA determined that Zhao could not claim that he feared persecution for a

child conceived with his new wife because it would really be his “first” child and would

not violate China’s one-child policy.

The BIA also based its opinion in part on an issue not raised by the IJ. Noting

that the IJ “properly concluded” that Zhao and Qing were not legally married, the BIA

determined that respondent was ineligible for withholding on the “basis of his

girlfriend’s alleged coerced abortion.” Relying on In re S-L-L-, 24 I&N Dec. 1, at *10

(BIA 2006) (holding that an alien can establish fear of persecution based on spouse’s

forced abortion), the BIA ruled that Zhao could not assert Qing’s forced abortion as a

basis of fear of persecution because she was not his spouse.9
No. 07-4117 Zhao v. Holder Page 9

The BIA noted that Zhao also requested withholding of removal under the CAT.

The BIA determined, however, that Zhao failed to provide substantial evidence that he

was tortured in the past in China or that any government official would torture him upon

return. Thus, the BIA also denied Zhao’s request for withholding of removal under the

CAT.

The BIA “dismissed” Zhao’s appeal on August 9, 2007. Zhao now appeals the

BIA’s decision.

II. LAW AND ANALYSIS

A. Withholding of Removal under the Act and the CAT

To establish a claim for withholding of removal under section 241(b)(3)(B) of

the Act, an applicant must demonstrate a clear probability that his life or freedom would

be threatened in the country directed for removal on account of his race, religion,

nationality, membership in a particular social group, or political opinion. INS v. Stevic,

467 U.S. 407 (1984). See also footnote 2, supra. A person who has been forced to abort

a child, undergo sterilization, or who has been persecuted for refusal to undergo such a

procedure shall be deemed to have been persecuted on account of political opinion.

8 U.S.C. § 1101(a)(42); In re X-P-T-, 21 I&N Dec. 634 (BIA 1996).

This Court has elected to revise its initial opinion, now published at 553 F.3d 436

(6th Cir. 2009), because the government has asked us to incorporate the Attorney

General’s opinion in In re J-S-, 24 I&N 520 (A.G. 2008), a case that overrules any per

se grant of asylum to applicants whose spouses have been subject to forced abortion or

forced sterilization. Our acknowledgement of the Attorney General’s opinion does not

alter the substance, rationale, or ruling on the issues presented for review.

In re J-S- instructs the BIA and IJ to cease applying the rule, articulated in In re

C-Y-Z-, 21 I&N Dec. 915 (BIA 1997) (en banc), and In re S-L-L-, 24 I&N Dec. 1 (BIA

2006) (en banc), that applicants whose spouses have been forced to undergo abortion or
No. 07-4117 Zhao v. Holder Page 10

10The Court is aware that Zhao applied for withholding of removal under 8 U.S.C.

§ 1231(b)(3)(A) and that the standards for granting refugee status for asylum under 8 U.S.C.

§ 1101(a)(42)(B) and withholding of removal differ. Gilaj v. Gonzales, 408 F.3d 275, 283-84, 289-90 (6th

Cir. 2005) (citing INS v. Cardoza-Fonseca, 480 U.S. 421, 430-32 (1987)). The “clear probability”

standard used in withholding of removal cases is more stringent than the “well-founded fear of

persecution” standard used in asylum cases. Id. Because the withholding of removal standard is higher

than that governing asylum, an applicant who fails to establish a well-founded fear of persecution for

purposes of establishing asylum is necessarily ineligible for withholding of removal. Lumaj v. Gonzales,

462 F.3d 574, 578 (6th Cir. 2006) (citing Mikhailevitch v. INS, 146 F.3d 384, 391 (6th Cir. 1998)).

11See also Koulibaly v. Mukasey, 541 F.3d 613, 619 (6th Cir. 2008) (stating that this Court

reviews the decision of the BIA where the BIA renders its own decision).

sterilization are per se deemed to have been persecuted for the purposes of establishing

refugee status.10 The Attorney General held:

[T]he Board and Immigration Judges shall cease to apply the per se rule

of spousal eligibility articulated in C-Y-Z and S-L-L- and shall instead

engage in a case-by-case assessment of whether a section 601(a)

applicant who has not physically undergone a forced abortion or

sterilization procedure can demonstrate that (i) he or she qualifies as a

refugee under section 601(a) on account of persecution for ‘failure or

refusal’ to undergo such a procedure or for ‘other resistance’ to a

coercive population control program; (ii) he or she has a well-founded

fear of being forced to undergo an abortion or involuntary sterilization

procedure or of being persecuted for failing or refusing to undergo such

a procedure or for ‘other resistance’ to a coercive population control

program; (iii) the specific facts of his or her case justify asylum on

grounds other than those articulated in section 601(a); or (iv) he or she

satisfies the requirements for derivative asylum expressly set forth in

section 208(b)(3)(A) of the Act.

In re J-S-, 24 I&N Dec. at 537-38. 

To establish eligibility for relief under the CAT, the applicant must show he

would be tortured if removed to the proposed country of removal. 8 C.F.R.

§ 1208.16(c). See footnote 2, supra.

B. Standard of Review

When the BIA adopts the IJ’s reasoning and supplements the IJ’s opinion, that

opinion, as supplemented by the BIA, becomes the basis for review. Ka v. Gonzales,

236 F. App’x 189, 191 (6th Cir. 2007) (citing Singh v. Ashcroft, 398 F.3d 396, 400-01

(6th Cir. 2005)).11 “This court reviews any legal conclusions de novo and factual
No. 07-4117 Zhao v. Holder Page 11

12At the request of the government, the Court has eliminated reference to the credibility

provisions in the REAL ID Act, which were not in effect at the time of Zhao’s application in 2003.

Eliminating this language does not affect our ultimate ruling.

findings and credibility determinations for substantial evidence.” Id. The Court of

Appeals “directly reviews the decision of the IJ while considering the additional

comment made by the BIA.” Mapouya v. Gonzales, 487 F.3d 396, 405 (6th Cir. 2007).

“Although this Court reviews the BIA’s legal conclusions de novo, it must defer

to the BIA’s reasonable interpretations of the INA.” Koulibaly v. Mukasey, 541 F.3d

613, 619 (6th Cir. 2008) (quoting Patel v. Gonzales, 432 F.3d 685, 692 (6th Cir. 2005)).

“Factual findings are reviewed under a substantial evidence standard ‘in which we

uphold a BIA determination as long as it is supported by reasonable, substantial, and

probative evidence on the record considered as a whole.’” Id. (quoting Marku v.

Ashcroft, 380 F.3d 982, 986 (6th Cir. 2004)); Mapouya v. Gonzales, 487 F.3d 396, 405

(6th Cir. 2007). “Under this deferential standard, the court may not reverse the Board’s

determination simply because we would have decided the matter differently.” Koulibaly,

541 F.3d at 619 (quoting Ouda v. INS, 324 F.3d 445, 451 (6th Cir. 2003)) (internal

quotation marks and citations omitted). “Unless ‘any reasonable adjudicator would be

compelled to conclude to the contrary,’ the BIA’s findings of fact are ‘conclusive.’” Id.

(quoting 8 U.S.C. § 1252(b)(4)(B)).

Facts relevant to credibility determinations as applied to withholding of removal

and relief under the CAT are reviewed under this same standard. Id. (citing Sylla v. INS,

388 F.3d 924, 925 (6th Cir. 2004)) (applying the substantial evidence standard to a

credibility determination); Almuhtaseb v. Gonzales, 453 F.3d 743, 749 (6th Cir. 2006)

(applying § 1252(b)(4)(B) to a decision requesting withholding under the Act and the

CAT). “Thus, the BIA’s determination should be upheld unless evidence ‘not only

supports a contrary conclusion, but indeed compels it.’” Koulibaly, 541 F.3d at 619-20

(quoting Ouda, 324 F.3d at 451) (internal citation omitted and emphasis in original).12
No. 07-4117 Zhao v. Holder Page 12

13The BIA made the additional argument that, even if credible, Zhao could not claim fear of

persecution for his former wife’s forced abortion as she was not really his wife but his girlfriend. Because

this Court affirms on other grounds, we need not further consider the BIA’s additional argument.

1. Merits of Zhao’s Applications under the Act and the CAT

In this case, the BIA adopted the IJ’s finding that Zhao was not credible and

concurred with the IJ that, even if credible, Zhao was not entitled to withholding based

on a fear of persecution for a child born in the United States. The basis for this Court’s

review, then, is the IJ’s finding that Zhao was not credible and, even if credible, could

not advance a valid claim of fear of persecution based on a second child born in the

United States. Ka, 236 F. App’x at 191.13

However, on appeal, Zhao has not challenged the determination by the IJ and the

BIA that the child with his current spouse in the U.S. provided no basis for withholding

of removal. Thus, we will not consider the issue. “It is a well-established rule that this

Court will not consider claims that are presented for the first time on appeal nor

arguments that are not properly raised below.” Berryman v. Rieger, 150 F.3d 561, 568

(6th Cir. 1998). 

Therefore, we begin our analysis by reviewing the finding of the IJ that Zhao

lacked credibility. We consider each of the grounds relied upon by the IJ, and adopted

by the BIA, in order to determine whether the adverse credibility determination was

supported by substantial evidence, or whether a reasonable adjudicator would be

compelled to conclude to the contrary. Koulibaly, 541 F.3d at 619-20.

a. The Date of the Forced Abortion

In his application, Zhao stated that his wife’s forced abortion was “earlier

February, 1994,” yet in his testimony he stated it was December 1993. He could not

explain the inconsistency and had no corroborating evidence of the marriage or the

abortion. The forced abortion goes to the heart of his claim for withholding based on

fear of persecution, and the IJ properly found inconsistencies on this topic significant.
No. 07-4117 Zhao v. Holder Page 13

b. The Assault of the “Family Planning” Officer

In his application, Zhao indicated “I caught the officer and hit him a couple times

and run away.” In his testimony he stated that he was out on the street with a friend and

“hit [the officer] once.” The IJ properly placed importance on this discrepancy as this

encounter tended to enhance Zhao’s claim of fear of persecution from the officials. The

IJ noted that, standing alone, she would “overlook this inconsistency” except that it was

attached to another--the warning call.

c. The Warning Call at Zhao’s Mother-in-Law’s Home

Zhao’s application stated that the call came from his father, but he testified that

it came from a female cousin. The IJ was troubled by this inconsistency, especially since

Zhao had an opportunity to review his application before the hearing and did not change

the statement that his “dad” called him. While we are not as troubled with this

inconsistency (the call may have come from a cousin on behalf of his father), the IJ’s

finding is supported by the record and we defer to her determination. Koulibaly, 541

F.3d at 619. 

d. Zhao’s Whereabouts after Fleeing his Home

One of the most confusing and conflicting portions of Zhao’s testimony was his

whereabouts after his father or cousin told him the police had come after him. Whereas

his application stated that he was “running around at my relatives’ houses” for about a

year after this, he testified that he was sightseeing in several different cities for a few

months. He testified next that he came to the U.S. from Hong Kong, then contradicted

himself during the hearing by stating that he arrived from Singapore. The IJ found

Zhao’s explanations to be “almost incoherent” and characterized them as attempts to

“weave stories” to cover the inconsistencies. He had no evidence to corroborate where

he was. The IJ properly noted that this contradictory testimony “hangs together” with

other inconsistencies eroding Zhao’s credibility. See In re A-S-, 21 I&N Dec. 1106,

1112 (BIA 1998) (quoting In re Lugo-Guadiana, 12 I&N Dec. 726, 729 (BIA 1968)).
No. 07-4117 Zhao v. Holder Page 14

14For example, adverse credibility findings were upheld in Shjefni v. Gonzales, 229 F. App’x 388,

390 (6th Cir. 2007) (holding that contradictory testimony, discrepancies between the application and

testimony, and lack of corroborating evidence on physical mistreatment during incarceration and detention

by police supported adverse credibility finding), and Dashi v. Gonzales, 214 F. App’x 581, 584-85 (6th

Cir. 2007) (concluding that discrepancies between the application and testimony regarding details of

mistreatment and lack of corroborating evidence, such as witness statements from his wife or letters from

his political party to the effect that he was persecuted, supported adverse credibility finding). But see

Koulibaly v. Mukasey, 541 F.3d 613, 624 (6th Cir. 2008) (holding that minor inconsistencies, including

those regarding her location when arrested, whether she was beaten, her husband’s arrest and her escape

from hospital did not support adverse credibility determination), and Mapouya v. Gonzales, 487 F.3d 396,

406-10 (6th Cir. 2007) (holding that substantial evidence supported credibility where IJ failed to explain,

for example, why applicant’s use of “fighter” in one instance and “supporter” in another substantially

changed his application and where IJ relied on inconsistencies that were irrelevant to fear of persecution).

e. The “Not Decent Citizen” List

Zhao’s application stated that he was on a “not decent citizen list,” yet he forgot

about this until examined by the IJ. Although this inconsistency may be the fault of his

counsel for failing to elicit this during his direct examination, the fact remains that the

IJ, present for Zhao’s testimony, found it to be relevant to his credibility. We will not

disturb this finding.

f. Corroborating Evidence

The IJ properly focused on Zhao’s failure to provide corroborating evidence,

especially where his testimony was riddled with inconsistencies. She was correct to find

that the absence of even a letter from his father or cousin to confirm his testimony further

undermined his credibility. 

Courts upholding an IJ’s adverse credibility findings have done so on grounds

similar to those advanced by the IJ.14 The inconsistencies the IJ noted, and the BIA

adopted, related to issues tending to enhance Zhao’s claims of persecution. As the

government noted, Zhao could not identify evidence sufficient to compel a conclusion

contrary to the IJ’s conclusion where the record provided numerous omissions and

inconsistencies relating to the heart of his claim. Combined with a complete lack of

corroborating evidence, these findings, like those in similar cases cited supra, constitute

substantial evidentiary support of adverse credibility. We conclude that the IJ

appropriately focused on five significant discrepancies or inconsistencies related to the
No. 07-4117 Zhao v. Holder Page 15

15Citing a Second Circuit case, Secaida-Rosales v. INS, 331 F.3d 297 (2d Cir. 2003), Zhao

contends that this stringency renders the IJ’s decision an error in law requiring de novo review by this

Court. In Secaida-Rosales, however, the IJ criticized minor discrepancies that went to collateral matters.

The IJ in this case focused on major discrepancies on several critical issues enhancing Zhao’s alleged fear

of persecution.

heart of his claim and properly considered Zhao’s lack of corroboration. We find no

evidence compelling a different conclusion.

Facts relevant to credibility determinations regarding applications for

withholding under the Act and the CAT are reviewed under the same standard.

Koulibaly, 541 F.3d at 619. Since Zhao has failed to satisfy the threshold showing of

credibility to warrant withholding of removal under the Act, it logically follows that he

cannot demonstrate that he is entitled to relief under the CAT. Thus we also reject

Zhao’s claims under the CAT.

2. Evaluation Under an “Inappropriately Stringent Standard”

In his brief, Zhao argues that the credibility findings should be reversed because

the IJ held him to an “inappropriately stringent standard.”15 The IJ meticulously

explained the bases for her conclusions and properly applied the law. Therefore, we

reject Zhao’s contention.

III. CONCLUSION

The IJ in this case took great care to fully explain her analysis and the basis for

her decision that Zhao was not credible. Our review reveals that her findings were

supported by reasonable, substantial and probative evidence in the record. Mapouya,

487 F.3d at 405. There is nothing in the record to compel us to reach a contrary

conclusion. Koulibaly, 541 F.3d at 619-20. We therefore affirm the BIA’s adoption of

the IJ’s decision that Zhao was not credible and not entitled to withholding of removal

under section 241(b)(3)(B) of the Act or relief under the CAT.