Min Rong Chen; v. ALBERTO GONZALES, Attorney General of the United States

Honorable Jane A. Restani, Chief Judge of the United States Court of*
International Trade, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-3871
MIN RONG CHEN;
Petitioner
v.
*ALBERTO GONZALES, Attorney General
of the United States,
Respondent
*(Amended pursuant to Rule 43(c), Fed. R. App. P.)
ON PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
(No. A77-571-932)
Submitted pursuant to LAR 34.1(a)
September 29, 2005
Before: ALITO and AMBRO, Circuit Judges, and RESTANI, Chief Judge,*
United States Court of International Trade
(Opinion Filed: October 18, 2005)

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OPINION OF THE COURT
PER CURIAM:
Min Rong Chen, a native and citizen of China, seeks review of a final order of
removal issued by the Board of Immigration Appeals (“BIA”). The BIA affirmed without
opinion an Immigration Judge’s (“IJ”) denial of Chen’s applications for asylum,
withholding of removal, and protection under the Convention Against Torture. As we
write only for the parties, we do not state the facts separately. We deny the petition
because substantial evidence supports the agency’s decision.
I.
Where, as here, the BIA affirms without opinion, we review the IJ’s decision. See
8 C.F.R. § 1003.1(e)(4); Dia v. Ashcroft, 353 F.3d 228, 245 (3d Cir. 2003) (en banc). We
must uphold the IJ’s findings of fact, including an adverse credibility determination,
“unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8
U.S.C. § 1252(b)(4)(B); Xie v. Ashcroft, 359 F.3d 239, 243 (3d Cir. 2004). Though this
standard is deferential, the IJ still must identify the “inconsistent statements, contradictory
evidence,” or inherently improbable testimony that supports the adverse credibility
determination. Cao v. Attorney General, 407 F.3d 146, 152 (3d Cir. 2005).
“Aliens have the burden of supporting their asylum claims through credible

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Citations to “App.” refer to the Petitioner’s Appendix. “A.R.” indicates the2
Certified Administrative Record.
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testimony.” Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002). The failure to do so will
“doom” the application. Dia, 353 F.3d at 247.
II.
Chen first contends that the IJ failed to make an explicit adverse credibility
determination. If the IJ failed to express her disbelief “with such clarity as to be
understandable,” then we must assume Chen was credible for purposes of this petition.
See SEC v. Chenery Corp., 332 U.S. 194, 196-97 (1947); Lusingo v. Gonzales, 420 F.3d
193, 197 n. 5 (3d Cir. 2005); see also Iao v. Gonzales, 400 F.3d 530, 534 (7th Cir. 2005)
(expressing displeasure with some IJs’ “[r]eluctance to make clean determinations of
credibility”).
In her oral decision, the IJ pointed out several discrepancies between Chen’s
testimony and the account of her purported husband. The IJ stated that Chen’s
description of her husband’s flight from China so differed from his own account that it
was “as if [she was] looking at two separate people.” App. 14. The IJ then continued:2
Because the testimony of the respondent is so different from the testimony
or the information provided by her husband, again the Court cannot find
that these two individuals are married, however, even if the court were to
accept the fact that the respondent is married to this other individual, Yu
Xiang Zheng, the Court is certainly not convinced that the respondent, in
this case, underwent a forced abortion.
App. 16. Although a plainer statement was surely possible, we view this as a sufficiently

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clear articulation of the IJ’s disbelief. We therefore conclude that the IJ made an adverse
credibility determination.
III.
Alternatively, Chen argues that the credibility determination cannot withstand
scrutiny under our deferential standard of review. We disagree. Chen testified that she
married Yu Xiang Zheng in 1993, became pregnant, and suffered a forced abortion at the
hands of the Chinese government. A.R. 111-13. She then became pregnant a second time,
and the authorities told Chen they would sterilize her after the birth. When Zheng
protested, a government official beat him with a stick and threatened arrest. A.R. 114-18.
He then, according to Chen’s account, went into hiding and made his way to the United
States. A.R. 118. Zheng’s own asylum application contradicts this testimony. In it, Zheng
stated that he fled China due to persecution suffered solely on account of his opposition to
the Tiananmen Square massacre. A.R. 158-61. In his initial interview, he claimed that he
was unmarried. A.R. 166. This contradictory evidence involves matters central to Chen’s
claim and provides substantial evidence to support the IJ’s adverse credibility
determination. See Cao, 407 F.3d at 152; Zheng, 417 F.3d at 381.
Without credible testimony, Chen cannot establish past persecution. See Gao, 299
F.3d at 272. Nonetheless, she further contends that the background evidence on country
conditions itself establishes a well-founded fear of persecution due to the birth of her
second child in the United States. We conclude that nothing in the background evidence

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compels such a finding. Accordingly, we uphold the IJ’s denial of asylum.
IV.
Because Chen failed to establish her eligibility for asylum, it follows that she
failed to satisfy the higher standard for withholding of removal. See Lukwago v.
Ashcroft, 329 F.3d 157, 182 (3d Cir. 2003). We also believe that a reasonable factfinder
could conclude that Chen failed to show a likelihood of torture upon her return to China.
See id. at 182-83. We therefore uphold the IJ’s denial of her claim for protection under
the Convention Against Torture.
V.
For these reasons, the petition for review is denied.

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