FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JUNE 17, 2010

JOHN LEY

 CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 08-13849

________________________

Agency No. A95-708-709

YU XIA,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(June 17, 2010)

Before TJOFLAT and COX, Circuit Judges, and KORMAN, District Judge.

*

TJOFLAT, Circuit Judge:

Petitioner Yu Xia petitions this court for review of the decision of the Board

 Honorable Edward R. Korman, United States District Judge for the Eastern District of *

New York, sitting by designation.
of Immigration Appeals (“BIA”) affirming the denial, by an Immigration Judge

(“IJ”), of her claims for asylum, withholding of removal, and relief under the

United Nations Convention Against Torture (“CAT”), and ordering her removal.

We deny Xia’s petition.

I.

Yu Xia was born on September 10, 1985, in Lianjiang County, Fujian

Province, China. Xia entered the United States at Los Angeles International

Airport without a visa on March 20, 2005, and, four days later, received a notice to

appear in removal proceedings. Xia conceded removability based on the

allegations of the notice. On January 11, 2006, however, she filed an application

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for asylum, withholding of removal, and relief under the CAT, claiming past

persecution based on her political opinion. Specifically, Xia claimed that she

became pregnant while in a relationship with her boyfriend; as she was eighteen

years old at the time and he was twenty-one, both were too young to marry under

Chinese law. She claimed that on November 10, 2004, agents of the county

government came to her home, told her she had violated the Chinese family

planning law (because she was unmarried and became pregnant without

 The notice to appear charged Xia with being a non-citizen of the United States who 1

arrived at Los Angeles International Airport and applied for admission without possessing valid

entry documents, making her subject to removal under § 212(a)(7)(A)(i)(I) of the Immigration

and Nationality Act, 8 U.S.C. § 1182(a)(7)(A)(i)(I).

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government permission), and took her to a local hospital where they forced her to

undergo an abortion. She further claimed that, after complaining to the local

family planning office about her forced abortion, officials there chased her out and

threatened her with arrest and violence if she complained again. As a result, Xia

feared harm or mistreatment at the hands of the national and local Chinese

governments if she were returned to China; she feared she could be arrested for

having left China illegally and would once again be subject to China’s family

planning law and forced to have an abortion if she became pregnant again.

On September 28, 2006, Xia, represented by counsel, appeared before an IJ

for a hearing on her asylum application. On direct examination, Xia’s attorney

asked her about the circumstances surrounding her forced abortion:

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Q. Okay. Now you stated Government persecution. When did it

start?

A. Since November 10th, 2004.

Q. Why was the Government persecuting you on or about November

10th, 2004?

A. I was, was pregnant before marriage, prior, before marriage. The

pregnancy was before the mandatory age of China, to get pregnant.

Q. Now how old were you when you got pregnant if you remember.

A. 18 year old.

Q. So what year did you get pregnant?

A. 2004.

Q. And ma’am, who impregnated you?

A. My boyfriend.

 In some portions of the hearing transcript, the designations for “Question” and 2

“Answer” were reversed. We have changed those designations to correctly reflect the course of

the examination.

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. . . .

Q. Okay. Now you stated earlier that you had problems studying [sic]

around November 10th, 2004. What happened to you on that date?

A. On November 10th, I was alone at home. A few people from Family

Planning Department came to my home wanted to take me to the

hospital doing tests to make sure that, to check and see if I was

pregnant.

. . . .

Q. Okay. What happened when these officials came to your house?

A. I was forcibly taken into a seven passenger van and taken to a local

hospital.

Q. What do you mean you were taken forcefully?

A. They dragged me. They pushed me into the van.

Q. And where were you taken to?

A. Local county hospital.

Q. Do you remember the name of the local county hospital?

A. Yen Chow Hospital (phonetic sp.)

Q. And what happened when you got to the hospital?

A. I was forced to take urine test.

Q. What do you mean you were forced to take a urine test?

A. One, a nurse went into the restroom with me and watched to make

sure that I did the urine test.

Q. Okay. Then what happened after that?

A. One hour later they got test results and she confirmed that I was

pregnant and I was forced, I was taken, forcefully taken to the

operation room.

Q. Did you have an abortion?

A. At that time not yet but later two nurses hold me, hold my legs down

and two other people hold down my arms and then the doctor plugged

a tube into me, forced me to do the abortion.

Q. Now were you ever asked whether or not you wanted an abortion?

Were you asked whether or not you wanted to have an abortion?

A. No.

To corroborate her claim that she was forced to have an abortion, Xia

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attached to her asylum application a document purporting to be a “Family Plan

Birth Control Operation Certificate,” in both Mandarin and an English translation

thereof. This “abortion operations certificate,” as the IJ termed it, listed Xia’s

name and gave a doctor’s signature dated November 10, 2004. The abortion

certificate had spaces to list a patient’s age and sex, both of which were blank on

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Xia’s certificate.

On cross-examination, the Government’s attorney questioned Xia about

when she discovered she was pregnant, as well as her age when she had the

abortion:

Q. And you say you got pregnant in July of 2004. Is that correct?

A. Yes.

Q. When did you learn that you were pregnant?

A. When I supposed to, my period supposed to start, I knew.

Q. So was that in July or August?

A. July.

Q. And whom did you tell you were pregnant?

A. My boyfriend.

Q. Anyone else?

A. No.

Q. And you didn’t tell your parents, correct?

A. No.

Q. So they didn’t know you were pregnant?

A. They later found out and the reason I was vomiting responding to the

pregnancy. They found out on their own but I did not tell them.

Q. When did they find out?

A. Two months later.

 Either a male or a female could have used the certificate, as it included the following 3

“Birth Control Type[s]”: vasectomy, sterilization, IUD, induced abortion, or “other.” On Xia’s

certificate, “other” was followed by the entry “abortion.” 

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Q. In September?

A. September, end of August.

. . . .

Q. Now you said that you were 18 when you had the abortion? When

you had the abortion.

A. Yes.

Q. So, but this was in 2004, right?

A. Yes.

Q. November.

A. Yes.

Q. And you were born in 1985? So wouldn’t you have been 19?

A. I didn’t know how to calculate American birthdays.

Xia’s attorney asked no questions on redirect examination. The IJ then

questioned Xia. One line of her questioning concerned Xia’s attendance at college

soon after Xia discovered she was pregnant:

Q. And how did your parents react when they found out at the end of

August about your pregnancy?

A. They told me to stay at home, not go, don’t go out.

Q. Did you do that?

A. Yes. I stayed at home.

Q. How did you go to Fuqing College for the one month?

A. They decided going to college, I have a choice to equip myself with

some knowledge is better choice for me than staying at home.

Q. So when did your parents change their mind about you going out?

A. About five days later.

Q. So that would have been August of 2004 too?

A. You’re right.

Q. Okay. So your parents were okay with you’re [sic] going to college

being pregnant which was going to be eventually visible?

A. They noticed that I was unhappy staying at home so they decided to

let me out and go to college.

Following closing arguments from both sides, the IJ issued an oral decision

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denying Xia’s application for asylum, withholding of removal, and CAT relief, and

ordering Xia’s removal. The IJ concluded that Xia “failed to credibly demonstrate

4

that she suffered past persecution or that she has a well-founded fear of persecution

in China on account of her race, origin, nationality, membership in a particular

social group, or political opinion.” The IJ based her adverse credibility

determination on several of Xia’s testimonial infirmities. First, the IJ noted the

discrepancy between Xia’s statement that she was eighteen when she had the

abortion and the fact that based on her date of birth, she would have been nineteen

if she had the abortion on November 10, 2004. Second, the IJ found it

unbelievable that Xia started attending college beginning in September 2004 when

she was already approximately three months pregnant and her pregnancy would

soon become visible. Third, while she acknowledged that she was not a forensic

expert, the IJ questioned the reliability of the abortion operations certificate given

that it did not “reflect [Xia’s] age, sex, or gender.” The IJ added that

“documentation regarding forced abortions [is] rarely issued. [She] found highly

implausible [Xia’s] claim on cross-examination that she was not administered any

type of anesthesia during the abortion” and observed that Xia had not submitted

 The IJ’s decision addressed Xia’s claim for asylum. Because an alien’s burden of 4

proving entitlement to withholding of removal or CAT relief is more demanding than the burden

of proving eligibility for asylum, see, e.g., Rodriguez Morales v. U.S. Att’y Gen., 488 F.3d 884,

891 (11th Cir. 2007) (per curiam), Xia’s failure to prevail on her asylum claim meant that she

could not prove entitlement to withholding of removal or CAT relief. 

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any other documentation to establish her claim of a forced abortion. The IJ also

noted that Xia had not credibly demonstrated her identity, given that she did not

have valid immigration documentation when she entered the United States and did

not provide such pre-entry documentation to the Immigration Court. The IJ

concluded that she was not

persuaded by [Xia’s] claim that she was subjected to a forcible

abortion on November 10th, 2004 if in fact she was pregnant. The

Court has reached such conclusion given the background material in

the Country Reports and Profile as well as its evaluation of the alleged

abortion operations certificate within the asylum application and copy

form.

(Emphasis added).

The IJ’s decision relied in part on two documents published by the United

States Department of State: the 2005 Country Report on Human Rights Practices

for China (“2005 Country Report”) and the 2004 Profile of Asylum Claims and

Country Conditions for China (“2004 Profile”) (collectively the “State Department

Reports”). As the IJ summarized them,

[w]ith respect to the Family Planning Policy, both the 2005 Country

Reports and the Profile acknowledge that the implementation of the

Family Planning Policy varies depending on location and is more

enforced in the cities rather than in the rural areas. Both the 2005

Country Reports and the profile for June of 2004, also acknowledge

that despite the September 2002, National Family Planning Law that

prohibits the use of physical coercion to compel persons to submit to

abortion or sterilization, in certain instances such prohibitions [are]

not followed. Specifically, the June 2004 report on page 21 indicates

that there have been reports that physical coercion continues to occur

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in rural areas.

The IJ stated that she “carefully considered the background material in the record

within the 2005 Country Reports and in a June 2004 profile.” She also noted the

State Department Reports’ statements that while some local officials had violated

the prohibition on the use of physical coercion to enforce the family planning law,

these were considered isolated incidents and the officials responsible were

punished. Lastly, she noted from the State Department Reports that China’s family

planning policy was less rigorously enforced in rural areas than in cities, and that

many women chose to have voluntary abortions rather than pay the “social

compensation fees” that were required for violations of the policy. Based on her

reading, the IJ found Xia’s claim that she was forced to undergo an abortion

inconsistent with the material in the State Department Reports. Instead, the IJ

found it more likely, “[b]ased on the evidence of record,” that Xia had a voluntary

abortion on November 10, 2004, and that her claim of past persecution based on

opposition to China’s family planning policy was unfounded.

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 The IJ also rejected Xia’s claim of a well-founded fear of future persecution. While 5

Xia testified that she feared returning to China because she would not be able to marry and have

the number of children she wanted because she would be subject to the family planning policy,

the IJ found that she was 21 at the time of the hearing—of legal age for women to marry in

China—and that the family planning policy applied equally to all Chinese women. With respect

to Xia’s claim that she would be subject to punishment or physical harm for illegally leaving

China, the IJ found that Xia had submitted no documentation to support that claim and credited

the Government’s evidence that “U.S. officials in China have not confirmed any cases of abuse

of persons returned to China from the United States for illegal entry.” 

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It is clear from the record that the State Department Reports played some

role in the IJ’s decision to deny Xia’s claims. The State Department Reports,

though, were by no means the only findings the IJ made that led her to deny Xia’s

claims “for failure of proof and lack of credibility.”

Xia appealed the IJ’s decision to the BIA, and, on June 19, 2008, the BIA

affirmed. In its decision, the BIA devoted one paragraph to the merits of Xia’s

asylum claim. The BIA found that the IJ did not clearly err in determining that

Xia’s testimony was not credible, pointing to the date-of-birth discrepancy, the

purported abortion certificate, and the conflict between Xia’s claim and the

evidence suggesting that most women with unauthorized pregnancies paid social

compensation fees rather than underwent forced abortions as inconsistencies going

to the heart of Xia’s asylum claim. In her petition for review submitted to this

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court, Xia raises one issue: “Whether the IJ’s denial of [her] application for asylum

is supported by substantial evidence.” In addressing this issue in her brief, Xia

argues that the IJ erred in finding her testimony not credible based on the State

Department Reports; thus, the IJ’s denial of asylum was not supported by

substantial evidence.

II.

We review only the BIA’s decision except to the extent that the BIA

 Xia did not attempt to explain these discrepancies in her appeal to the BIA. 6

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expressly adopts the IJ’s opinion or reasoning. Al Najjar v. Ashcroft, 257 F.3d

1262, 1284 (11th Cir. 2001). Here, the BIA issued its own opinion, but also

adopted parts of the IJ’s oral decision regarding the credibility of Xia’s testimony.

Therefore, we review both the BIA’s decision and the IJ’s reasoning supporting the

adverse credibility determination.

An IJ’s finding that the testimony of an asylum applicant is not credible is a

finding of fact. In reviewing such a finding, the substantial evidence standard

requires that we affirm the finding if it is “‘supported by reasonable, substantial,

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

Lorisme v. INS, 129 F.3d 1441, 1444–45 (11th Cir. 1997)). To reverse the finding

under that standard, we must conclude “not only that the evidence supports a

contrary [finding], but that it compels one.” Farquharson v. U.S. Att’y Gen., 246

F.3d 1317, 1320 (11th Cir. 2001). That is, “the mere fact that the record may

support a contrary [finding] is not enough to justify a reversal of the . . . finding[].”

Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en banc). This

deferential standard prevents us from “‘reweigh[ing] the evidence from scratch.’”

Id. (quoting Mazariegos v. U.S. Att’y Gen., 241 F.3d 1320, 1323 (11th Cir. 2001)).

We acknowledge that in Tang v. U.S. Attorney General, 578 F.3d 1270,

1280 (11th Cir. 2009), a panel of this court decided that an IJ may not select

portions of a State Department Country Report that undermine an asylum

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applicant’s claim while ignoring those portions that support the claim. Here, it is

true that the IJ said that she “carefully considered” the background material in the

State Department Reports. But the IJ’s adverse credibility determination rested on

far more than those two documents. The discrepancy in how old Xia said she was

when she had the abortion versus her actual age at that time based on her birthday,

the incredibility of her decision to start college when her pregnancy was about to

show, her lack of evidence confirming her identity, and the unreliability of Xia’s

purported abortion certificate were all ample evidence from which the IJ could

have made the adverse credibility determination—even leaving aside the State

Department Reports. We must affirm this decision as long as, based on the entirety

of the record, the decision is based on reasonable, substantial, and probative

evidence. Al Najjar, 257 F.3d at 1284. Our review of the record leads us to

conclude that it is.

The substantial evidence standard means that we “‘view the record evidence

in the light most favorable to the agency’s decision and draw all reasonable

inferences in favor of that decision.’” Tang, 578 F.3d at 1276 (quoting Adefemi,

386 F.3d at 1027). In that vein, “a denial of asylum relief can be supported solely

by an adverse credibility determination, especially if the alien fails to produce

corroborating evidence.” Id. at 1276–77 (citing Forgue v. U.S. Att’y Gen., 401

F.3d 1282, 1287 (11th Cir. 2005)). Lastly, the REAL ID Act of 2005, Pub. L. No.

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109-13 § 101, 119 Stat. 302, granted more latitude to IJs in making credibility

determinations in applications for asylum and withholding of removal filed (as

Xia’s was) after May 11, 2005:

Considering the totality of the circumstances, and all relevant factors,

a trier of fact may base a credibility determination on the demeanor,

candor, or responsiveness of the applicant or witness, the inherent

plausibility of the applicant’s or witness’s account, the consistency

between the applicant’s or witness’s written and oral statements

(whenever made and whether or not under oath, and considering the

circumstances under which the statements were made), the internal

consistency of each such statement, the consistency of such statements

with other evidence of record (including the reports of the Department

of State on country conditions), and any inaccuracies or falsehoods in

such statements, without regard to whether an inconsistency,

inaccuracy, or falsehood goes to the heart of the applicant’s claim, or

any other relevant factor. There is no presumption of credibility,

however, if no adverse credibility determination is explicitly made,

the applicant or witness shall have a rebuttable presumption of

credibility on appeal.

8 U.S.C. § 1158(b)(1)(B)(iii).

In a Seventh Circuit case, Dong v. Gonzales, 421 F.3d 573 (7th Cir. 2005),

the petitioner, Dong, had a background remarkably similar to Xia’s: a nineteenyear-old woman from Fujian Province, who became pregnant by her boyfriend,

was taken by officials from her village’s family planning office to the hospital.

There, after the officials discovered she was pregnant, they forced her to undergo

an abortion. Id. at 574–75. She entered the United States without a visa and

claimed both past persecution based on her political beliefs and fear of future

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persecution, in that she would face punishment in China for leaving that country

illegally. Id. at 575.

At the conclusion of a merits hearing before an IJ, the IJ denied Dong’s

request for withholding of removal and relief under the CAT. In doing so, the IJ

did not explicitly find Dong’s testimony not credible; instead, he labeled the

testimony “not plausible” without explaining why it was so. Id. at 576. The BIA

summarily affirmed the IJ’s finding, but the Seventh Circuit reversed, holding that

the IJ lacked a sufficient evidentiary basis for his mere skepticism about Dong’s

account of the material events. The Seventh Circuit also took issue with the IJ’s

reliance on the State Department Reports (the same ones used in Xia’s case, albeit

from different years) because the IJ used the general accounts in them to refute

specific parts of Dong’s story. Id. at 578.

In this case, in contrast to Dong, the IJ gave well-explained reasons for

finding Xia’s account not credible. The IJ was more than merely skeptical about

Xia’s account; the IJ listed several discrepancies and omissions that rendered it less

than believable. Those reasons still stand even if the State Department Reports are

removed from consideration, as Xia’s testimony included at least one internal

inconsistency (how old she was when she had the abortion) and one omission

(identifying data on the abortion operations certificate). Xia did not provide

corroborating evidence that would have rebutted these inconsistencies and

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omissions. That is, the totality of the record provides ample support for the IJ’s

specifically stated finding that Xia’s testimony regarding the critical events at issue

was not credible.

The IJ offered “specific, cogent reasons,” supported by the record, for

determining that Xia’s testimony was not credible. Shkambi v. U.S. Att’y Gen.,

584 F.3d 1041, 1049 (11th Cir. 2009) (per curiam) (quoting Forgue, 401 F.3d at

1287). This record does not compel us to reverse that determination. Accordingly,

we affirm the BIA’s decision and deny Xia’s petition for review.

PETITION DENIED.

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