He Chun Chen, a/k/a HE ZHONG CHEN v. JOHN ASHCROFT, Attorney General of the United States

PRECEDENTIAL
UNITED STATES COURT OF
APPEALS
FOR THE THIRD CIRCUIT
No. 03-2155
HE CHUN CHEN,
a/k/a
HE ZHONG CHEN
v.
JOHN ASHCROFT, Attorney General
of the United States,
Respondent
He Chun Chen,
Petitioner
On Petition for Review of an Order of
the Board of Immigration Appeals
(INS File Nos. A77-297-487)
Argued June 28, 2004
BEFORE: AMBRO, BECKER, and
GREENBERG, Circuit Judges
(Filed: July 26, 2004)
Bruno J. Bembi (argued)
62 Nichols Court
Suite 202
Hempstead, NY 11550
Attorney for Petitioner
Peter D. Keisler
Assistant Attorney General
Civil Division
Earle B. Wilson
Douglas E. Ginsburg
John D. Williams
Terri J. Scadron
Joshua E. Braunstein (argued)
Efthimia S. Pilitsis
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Attorneys for Respondent
OPINION OF THE COURT
GREENBERG, Circuit Judge.
I. INTRODUCTION
This matter comes on before this
court on He Chun Chen’s petition for
review of a decision of the Board of
Immigration Appeals (“BIA”) dismissing
his appeal from an order of an Immigration
Judge (“IJ”) denying his application for
asylum and withholding of removal or in
the alternative for protection under the
Convention Against Torture. Inasmuch as

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we find that substantial evidence in the
record supports the findings of both the IJ
and the BIA, we will deny the petition.
II. FACTUAL AND PROCEDURAL
HISTORY
Chen, a native and citizen of the
People’s Republic of China, arrived in the
United States at Los Angeles International
Airport on December 23, 1999, and
applied for admission without valid entry
documents. On February 22, 2000, the
Immigration and Naturalization Service
(“INS”), whose functions since have been
transferred to the Department of Homeland
Security, initiated removal proceedings
against Chen by serving him with a notice
to appear. At a hearing before an IJ in
which he was represented by counsel,
Chen conceded removability but indicated
that he intended to seek political asylum,
withholding of deportation, and protection
under the Convention Against Torture.
Chen predicates his claims on allegations
that Chinese authorities forced his wife to
terminate two pregnancies and caused her
to be sterilized forcibly in accordance with
the coercive family planning practices of
the Chinese government. He also alleges
that the Chinese authorities ransacked and
closed his bookstore because he sold Falun
Gong literature.
In recognition of the circumstance
that the IJ and the BIA premised their
denial of his application on Chen’s lack of
credibility, we will recount his testimony
in detail. Chen testified at an October 4,
2000 hearing before the IJ that he is from
Fuzhou City in the Fujian Province of
China, where he graduated from high
school in 1981. From 1981 through 1996
Chen worked in construction and in 1996
he opened a bookstore. Chen married Ha
Yun Ni on October 27, 1994, who, on
August 20, 1995, gave birth to a daughter.
One month later the government family
planning authorities took his wife to Guan
Tou Hospital for insertion of an intra-
uterine device (“IUD”) to prevent
pregnancy. According to Chen, the family
planning regulations required the insertion
of an IUD after the birth of a child but,
after four years, permit a family to request
permission to have another child.
Chen testified that the IUD must
have failed because in early 1996 his wife
discovered that she was pregnant.
According to Chen, the family planning
authorities required his wife once every
three months to go for “inspections” to
check on her IUD and ensure that she was
not pregnant. When Chen’s wife did not
go for the scheduled inspection of her IUD
by the authorities, they came on April 26,
1996, to the family home to find her. At
that time Chen was at his bookstore.
When he returned home that night his wife
told him that the authorities had taken her
to Lian Jiang Hospital and forced her to
undergo an abortion against her will.
Chen said that while his wife did not tell
him about the procedure in detail, she did
mention that she was given a shot. On the
same day as the abortion the authorities
also forced her to have another IUD

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inserted.
Chen testified that in 1998 he
petitioned for permission to have a second
child. The authorities denied this request,
citing the earlier violation of the family
planning policy. Unbeknownst to the
Chinese government, he and his wife then
decided to elicit the assistance of a private
physician to remove the IUD, and in April
1998 Chen’s wife had the IUD removed.
One month later in May 1998 Chen’s wife
discovered that she was pregnant again.
When the authorities notified her that it
was time for an inspection of the IUD in
July, Chen’s wife went into hiding at her
parents’ house in Guan Tou. On August
31, 1998, the authorities found Chen’s
wife at her parents’ home and took her to
Lian Jiang Hospital for another forced
abortion. As with the first abortion,
Chen’s wife was given a shot. The
authorities also inserted another IUD on
the same day. The following year Chen
again submitted a request to the Chinese
government to have another child but this
time the authorities granted the request. In
October 1999 Chen’s wife discovered that
she was pregnant.
Chen also testified before the IJ that
he sold Falun Gong books by Li Hong Zhi
in his bookstore from April 1996 through
April 1999, when the Chinese government
destroyed and closed the store.
Government cadres came to his store and
notified him that he no longer could sell
Falun Gong books. According to Chen,
the government officials explained that
Falun Gong was an evil religion.
Nevertheless, even though he was warned
not to sell the Falun Gong books, Chen
continued to do so because it was
profitable. Chen testified that he received
a second warning that he should cease all
sales of Falun Gong materials. Chen,
however, informed an immigration officer
in California in February 2000 that the
Chinese government gave him “a” warning
about selling Falun Gong books. AR1 at
199-200.
Chen testified that he was not a
member of Falun Gong, but only sold its
books, though at the airport interview
conducted on the day of his arrival in the
United States, Chen told an immigration
official that he was a practitioner of Falun
Gong. When asked by the IJ why he made
this statement even though it was not true,
Chen responded that “[t]he smuggler
taught me to say that, they said that I have
to say that. They said, they told me not to
say anything else, just say I am a Falun
Gong follower.” AR at 202. Chen,
however, never mentioned anything at his
airport interview about his family’s
difficulties with the family planning
policies in China.
Chen testified that when he refused
to heed the cadres’ warnings, the Chinese
authorities in May 1999 confiscated his
books, destroyed the bookstore, and closed
it down. Chen then went into hiding. He
testified that he stayed with an uncle in
1We cite the administrative record as
AR.

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Changle City until November 1999,
though in an earlier interview with United
States immigration authorities Chen stated
that he stayed with a relative until
September 1999. When confronted with
this inconsistency during the immigration
hearing Chen responded “[m]aybe I made
a mistake?” AR at 200.
Two months later on December 21,
1999, Chen left China with the assistance
of “snakeheads.” Chen traveled to Hong
Kong, then to Jakarta, Indonesia, on to
Malaysia and finally to Los Angeles.
Chen testified that he left China because
he knew that if his wife gave birth to a
son, she definitely would be sterilized. He
explained that his wife did not come to the
United States because she was pregnant
and not feeling well.
On July 13, 2000, Chen’s wife gave
birth to a son. Two months later, on
September 6, 2000, the Chinese authorities
sterilized his wife. Inasmuch as Chen was
in the United States when his wife was
sterilized, he obtained the information that
he provided at the hearing about the
sterilization from her. In this regard the IJ
questioned Chen why his wife would be
sterilized inasmuch as he was already in
the United States and therefore there
seemed little risk of pregnancy. Chen
responded that “[t]hey don’t care, as long
as you gave birth to two, two children, and
then they don’t care, either the male or the
female must be sterilized.” AR at 173.
According to Chen, his wife stayed
at her mother’s home after he left China,
but she had to return to their home because
it was the anniversary of the death of
Chen’s mother. Chen testified that the
authorities found his wife at their home
and brought her to Mawei Hospital for the
sterilization. A letter submitted by Chen
from his wife states, however, that the
family planning officials found her at her
parents’ home and took her for the
sterilization from there.
Chen testified that he was applying
for political asylum because he violated
China’s family planning policies and sold
Falun Gong books in his bookstore. He
indicated that he feared returning to China
because he might be sterilized. When the
IJ asked why the authorities would sterilize
him inasmuch as his wife already had been
sterilized, he stated that he would not be
sterilized and had “made a mistake.” AR
at 185.
At the conclusion of the hearing,
the IJ issued an oral decision denying
Chen relief. In particular, the IJ found that
Chen failed to establish a well-founded
fear of persecution, a necessary showing
for him to be eligible for asylum.
Therefore, the IJ found that it was not
necessary to consider whether Chen was
eligible for relief as a matter of discretion.
The IJ also denied Chen’s application for
withholding of removal and found that
Chen had not shown that more likely than
not he would be tortured if he returned to
China, and, accordingly, he did not merit
protection under the Convention Against
Torture.

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In reaching his conclusions, the IJ
found that Chen’s testimony lacked
credibility in several respects. First, the IJ
explained that he found Chen’s testimony
that on two occasions his wife had an IUD
inserted on the same day she had an
abortion as “not only incredible but also
implausible.” The IJ reasoned that “due to
the physical trauma of an abortion, the
Court finds that it is unlikely and most
likely physically impossible to insert an
IUD in an individual who has earlier that
day suffered an abortion.” AR at 97.
Moreover, the IJ questioned Chen’s
t e s ti m o n y r e g a r d i n g h i s w i f e ’s
sterilization. He stated that “[t]his line of
testimony again is not credible to the Court
and the Court does not understand why the
authorities would wish to sterilize the
respondent’s wife since the respondent,
himself, was in the United States.” AR at
98. In addition, the IJ identified an
inconsistency in Chen’s recounting of his
wife’s sterilization. Chen testified that the
authorities found his wife at their home,
while Chen’s wife’s letter indicated that
the authorities located her at her parents’
home. The IJ also pointed out that Chen
contradicted himself during his testimony
regarding his fear of sterilization. Thus,
while Chen first testified that he feared
that if he returned to China he would be
sterilized, when the IJ asked why the
authorities would sterilize him inasmuch
as they already had his wife sterilized, he
responded that he would not be sterilized
and had made a mistake.
The IJ also questioned Chen’s
testimony as to the timing of his departure
from China. Chen testified that he left
China after he and his wife had received
permission to have a second child and
while his wife was pregnant. The IJ
stated:
It makes absolutely no sense
to the Court that if the
respondent and his wife
were granted permission to
have another child, that the
govern ment w ould be
considering sterilizing either
the respondent or his wife.
Thus, it makes absolutely no
sense to the Court and it is
implausible testimony that
the respondent would wish
to leave China due to the
family planning policy after
he had received permission
to have this second child.
AR at 100-01. The IJ also pointed to the
discrepancy in Chen’s testimony regarding
the length of time he stayed at his uncle’s
home in Changle City while he was in
hiding prior to leaving for the United
States. At the hearing Chen testified that
he lived with his uncle until November
1999 while he previously had informed an
immigration official that he stayed with a
relative only until September 1999.
The IJ also indicated that Chen’s
testimony relating to his bookstore lacked
credibility. Chen testified that government
officials warned him twice that he should
discontinue selling Falun Gong books.

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However, the IJ pointed out that at an
earlier interview with an immigration
official Chen stated that he only had been
given “a” warning.
Furthermore, the IJ emphasized that
while Chen testified that he was not a
member of Falun Gong, at his airport
interview he informed the immigration
officer that he was in fact a member. Chen
explained during his testimony that the
smugglers had told him to say this. The IJ
also noted that Chen never mentioned
anything during his airport interview about
any difficulties his family had with
China’s family planning policies. The IJ
explained that Chen was alone with the
immigration official at the airport, and,
therefore, “[n]otwithstanding what the
snakeheads had told him to say, I see no
reason why the respondent would not tell
the inspector the truth, and why his
testimony would not coincide with the
testimony given to the Court today,
specifically concerning the problems that
his wife has experienced.” AR at 103.
Overall, after considering the entire
record before him, the IJ concluded that
Chen had “not established, due to his lack
of credibility a well-founded fear of
persecution if he were returned to China.
Accordingly, his application for asylum
will be denied.” AR at 104. The IJ also
denied Chen’s application for withholding
of removal and for protection under the
Convention Against Torture. Thus, the IJ
entered orders denying Chen any relief.
Chen appealed from this disposition
to the BIA. On April 3, 2003, the BIA
issued its decision dismissing Chen’s
appeal. In support of its decision, the BIA
cited the numerous inconsistencies pointed
out by the IJ. The BIA noted the
discrepancy between Chen’s wife’s
account of where she had been when she
was taken for sterilization and Chen’s
testimony before the IJ. The BIA further
found that Chen failed to sustain his
burden of proof in showing that his wife
was subjected to two forced abortions.
While it recognized that Chen submitted
two abortion certificates, it questioned
their validity, citing the Department of
State country report which states that
“such purported certificates, if they exist at
all, may be documents issued to women
who voluntarily submit to an abortion and
are entitled to the resulting benefits.” AR
at 2. The BIA also explained that Chen
had failed to prove a well-founded fear of
persecution on account of China’s coercive
family practices because he recognized
that he would not face sterilization if he
returned to China.
The BIA found that the record
supported an ad verse credib ility
determination as to Chen’s claim related to
his sale of Falun Gong books. It pointed
to the discrepancy in Chen’s account as to
how many times he was warned to stop
selling the books prior to the Chinese
officials closing down his shop. AR at 2.
The BIA further cited the false story that
Chen gave at the airport that he was a
follower of Falun Gong. It noted that
Chen did not support this aspect of his
claim with “objective evidence that a
bookstore owner may have acquired over

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the years to corroborate his claim that he
owned a bookstore and that the bookstore
was closed.” AR at 3. The BIA concluded
that “[f]or those reasons and others cited in
the Immigration Judge’s decision, the
Immigration Judge correctly denied the
respondent’s application for asylum and
withholding of removal.” AR at 3. The
BIA also upheld the IJ’s determination
with respect to Chen’s application for
protection under the Convention Against
Torture. Consequently, it dismissed his
appeal.
Chen timely filed this petition for
review, limiting his arguments to his
asylum and withholding of removal
claims, thus abandoning his claim for
protection under the Convention Against
Torture.
III. JURISDICTION AND SCOPE OF
AND STANDARD OF REVIEW
The BIA had jurisdiction over this
matter pursuant to 8 C.F.R. § 3.1(b)(3)
(2002), now 8 C.F.R. § 1003.1(b)(3),
which grants it appellate jurisdiction over
decisions of immigration judges in
removal cases. We have exclusive
jurisdiction under section 242(a)(1) of the
Immigration and Nationality Act (“INA”),
8 U.S.C. § 1252(a)(1), to review final
orders of removal.
We review adverse credibility
determinations for substantial evidence.
Balasubramanrim v. INS, 143 F.3d 157,
161 (3d Cir. 1998). Under this deferential
standard of review, we must uphold the
credibility determination of the BIA or IJ
unless “any reasonable adjudicator would
be compelled to conclude to the contrary.”
8 U.S.C. § 1252(b)(4)(B). Accordingly,
we are required to sustain an adverse
credibility determination “unless . . . no
reasonable person” would have found the
applicant incredible. See Concrete Pipe &
Prods. of Cal., Inc. v. Constr. Laborers
Pension Trust for S. Cal., 508 U.S. 602,
623, 113 S.Ct. 2264, 2280 (1993). For
Chen to prevail, the evidence of credibility
must be so strong in his favor that in a
civil trial he would be entitled to judgment
on the credibility issue as a matter of law.
See INS v. Elias-Zacarias, 502 U.S. 478,
481 n.1, 112 S.Ct. 812, 815 n.1 (1992)
(holding that the BIA’s decision can be
reversed only where the petitioner’s
evidence “compels” a reasonable
factfinder to find in his or her favor).
H o w e v e r , a d v e r s e c r e d i b i l i t y
determinations “based on speculation or
conjecture, rather than on evidence in the
record, are reversible.” Dia v. Ashcroft,
353 F.3d 228, 249 (2003) (en banc)
(quoting Gao v. Ashcroft, 299 F.3d 266,
272 (3d Cir. 2002)).
In addition to setting forth our
standard of review we must determine its
scope, i.e. does our appellate jurisdiction
encompass review of the IJ’s decision as
well as the BIA’s order? We recently have
recognized that when the BIA both adopts
the findings of the IJ and discusses some
of the bases for the IJ’s decision, we have
authority to review the decisions of both
the IJ and the BIA. Xie v. Ashcroft, 359
F.3d 239, 242 (3d Cir. 2004); see also

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Abdulai v. Ashcroft, 239 F.3d 542, 549 n.2
(3d Cir. 2001) (“When the BIA defers to
an IJ, a reviewing court must, as a matter
of logic, review the IJ’s decision to assess
whether the BIA’s decision to defer was
appropriate.”). Wh ere t he B IA
substantially relies on an IJ’s adverse
credibility determination, we must look to
both decisions in order to satisfy our
obligation under 8 U.S.C. § 1252(b) to
review the administrative decision
meaningfully. Xie, 359 F.3d at 242; see
also Dia, 353 F.3d at 243.
The BIA’s decision in this case
makes clear that it was relying upon the
adverse credibility finding made by the IJ.
While the BIA identified some of the
inconsistencies the IJ cited, it did so by
way of example and did not conduct a de
novo review of the record to arrive
indep ende ntly at its conclusions.
Inasmuch as the BIA deferred to the IJ’s
credibility determinations and adopted the
reasons the IJ set forth, we have authority
to review both determinations.
IV. DISCUSSION
The framework in which we review
the administrative determinations is well
established. Section 208(a) of the INA, 8
U.S.C. § 1158(b), gives the Attorney
General discretion to grant asylum to any
alien who demonstrates that he or she is a
“refugee” within the meaning of section
101(a)(42)(A) of the INA, 8 U.S.C. §
1101(a)(42)(A). Elias-Zacarias, 502 U.S.
at 481, 112 S.Ct. at 815. To qualify as a
“refugee,” one must demonstrate that he or
she is “unable or unwilling to return to . .
. that country [of nationality] because of
persecution or a well-founded fear of
persecution on account of race, religion,
nationality, membership in a particular
social group, or political opinion.” 8
U.S.C. § 1101(a)(42)(A). The definition
of “refugee” includes “a person who has
been forced to abort a pregnancy or to
undergo involuntary sterilization” under
the ambit of persecution “on account of
political opinion.” Id. § 1101(a)(42)(B).
The BIA has extended this protection to
include the spouse of an individual who
has been sterilized or otherwise subject to
a coercive population control program as
defined by 8 U.S.C. § 1101(a)(42)(B) and
we decide this appeal assuming the
validity of that conclusion. In re C-Y-Z,
21 I. & N. Dec. 915, 918 (BIA 1997). In
that case the BIA found that a husband
could “stand in [the] shoes” of a wife who
had been sterilized forcibly and therefore
was eligible for asylum on that basis. Id.2
2This case demonstrates what should
be obvious. C-Y-Z permits a husband to
capitalize on the persecution of his wife
to obtain asylum even though he has left
his wife behind and she might never join
him and he might intend that she not do
so. Such an outcome in which the
application of our laws would contribute
to the destruction of a family union
seems anomalous, at least in situations in
which the husband does not make a
compelling showing that if he is granted
asylum his wife will be able to join him
in this country. Indeed, the application

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Unlike asylum , which is
discretionary, the Attorney General must
grant withholding of removal if the alien
demonstrates a “clear probability” that,
upon return to his or her home country, his
or her “life or freedom would be
threatened” on account of race, religion,
nationality, membership in a particular
social group, or political opinion. See INS
v. Stevic, 467 U.S. 407, 104 S.Ct. 2489
(1984); Zubeda v. Ashcroft, 333 F.3d 463,
469-70 (3d Cir. 2003). An alien who fails
to establish that he or she has a well-
founded fear of persecution, so as to be
eligible for a grant of asylum, necessarily
will fail to establish the right to
withholding of removal. Zubeda, id. at
469 (citing Janusiak v. INS, 947 F.2d 46,
47 (3d Cir. 1991)).
The applicant for asylum has the
burden of proof to establish his or her
eligibility for asylum. 8 C.F.R. §
208.13(a) (2002); Abdille v. Ashcroft, 242
F.3d 477, 482 (3d Cir. 2001). The alien
must show by credible, direct, and specific
evidence an objectively reasonable basis
for the claimed fear of persecution.
Balasubramanrim, 143 F.3d at 165.
As we often have recognized, the
substantial evidence standard of review is
extremely deferential, setting a “high
hurdle by permitting the reversal of factual
findings only when the record evidence
would ‘compel’ a reasonable factfinder to
make a c on tra ry determination.”
Abdulrahman v. Ashcroft, 330 F.3d 587,
597 (3d Cir. 2003) (quoting Elias-Zacarias,
502 U.S. at 481 n.1, 112 S.Ct. at 815 n.1).
We therefore look at the adverse
credibility determinations made by the IJ
and BIA “to ensure that [they were]
‘appropriately based on inconsistent
statements, contradictory evidences, and
inherently improbable testimony . . . in
view of the background evidence on
country conditions.’” Dia, 353 F.3d at 249
(citation omitted). While, as we will
explain, we are troubled by some of the
speculative statements the IJ and the BIA
made, after reviewing the record as a
whole we are convinced that the record
evidence does not compel us to reach a
conclusion contrary to that of the IJ and
the BIA.
We recognize that we have
counseled against placing too much weight
on an airport interview, especially when
the IJ and BIA lack important information
as to the manner in which the interview
was conducted. Xie, 359 F.3d at 246;
Mulanga v. Ashcroft, 349 F.3d 123, 137
(3d Cir. 2003) (“immaterial discrepancies
between airport interviews and subsequent
testimony should not be used to make
adverse credibility determinations”);
Ezeagwuna v. Ashcroft, 325 F.3d 396, 408
(3d Cir. 2003); Senathirajah v. INS, 157
of our laws may be encouraging
husbands to desert their wives. While we
recognize that historically in persecution
cases married men sometimes have come
to this country first and then have been
followed by their families, C-Y-Z, 21 I.
& N. Dec. 915, at 920, 927 (Rosenberg,
Member, concurring), still it would be
useful to study the actual impact of C-Y-
Z on family structures.

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F.3d 210, 217-18 (3d Cir. 1998);
Balasubramanrim, 143 F.3d at 162-64.
We also have made clear that ambiguous
answers at airport interviews should not be
relied upon to question the credibility of
the alien later, though we have limited
concern with that admonition here as Chen
does not challenge the manner in which
the immigration official conducted the
airport interview and he does not maintain
that the respondent has mischaracterized
his statements made at that interview.
Rather, he merely points out that the notes
from the airport interview are not in the
record and that it cannot be said when they
were written or “whether [his] full
responses were translated at the airport, or
even whether he had an opportunity to
make clear, as he did in immigration court,
that the cadres thought he was a Falun
Gong follower.” Appellant’s br. at 59.
On the other hand, where the
discrepancies between an airport interview
and the alien’s testimony “go to the heart
of the claim,” they certainly support an
adverse credibility determination. Xie,
359 F.3d at 246. Here the record is clear
that Chen provided information at his
airport interview markedly different from
his testimony before the IJ. At his airport
interview he explained that he left China
because he was unable to practice Falun
Gong. In contrast, Chen testified before
the IJ that he was never a Falun Gong
follower, but he did sell Falun Gong books
at his bookstore. Furthermore, Chen never
mentioned anything during his airport
interview about any difficulties he or his
wife had with the coercive family planning
practices in China. The only explanation
Chen offered before the IJ was that the
smugglers told him to inform the United
States immigration officials that he was a
Falun Gong follower. Both the IJ and the
BIA reasonably relied on these
contradictory statements in finding that
Chen’s testimony lacked credibility.
The IJ also cited to other
discrepancies in Chen’s testimony leading
to his adverse credibility determination for
which we find support in the record. The
IJ pointed to the discrepancy in Chen’s
testimony regarding the length of time he
stayed at his uncle’s home in Changle City
while he was in hiding prior to leaving for
the United States. At the hearing Chen
testified that he lived with his uncle until
November 1999 though he informed an
immigration official at an earlier interview
that he stayed with a relative only until
September 1999. In addition, Chen first
testified before the IJ that he feared that if
he returned to China he would be
sterilized. When the IJ asked why the
authorities would sterilize him in light of
the circumstance that his wife already had
been sterilized, Chen responded that he
would not be sterilized and had made a
mistake. The IJ also pointed to a
discrepancy between Chen’s testimony
regarding his wife’s sterilization and a
letter provided by Chen from his wife.
Chen testified before the IJ that his wife
was apprehended by the family planning
authorities at their home, while Chen’s
wife’s letter stated that the authorities
found her at her parent’s home.
We recognize, however, that while

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a review of the record evidence does not
compel that we reach a conclusion
contrary to that drawn by the IJ and the
BIA, just as Judge Becker stated in his
concurrence in Abdulrahman, 330 F.3d at
600, we note our “extreme discomfiture”
with some of the statements the IJ made.
The IJ dismissed Chen’s testimony that his
wife had an IUD inserted on the same day
as an abortion on two separate occasions
as “not only incredible but also
implausible,” reasoning that “due to the
physical trauma of an abortion, the Court
finds that it is unlikely and most likely
physically impossible to insert an IUD in
an individual who has earlier that day
suffered an abortion.” AR at 97. This
statement is troublesome for two reasons.
First, the IJ is not a physician and while he
finds the evidence regarding the IUD
unlikely, he does not point to evidence in
the record in support of his speculation.
Second, the family planning regulations
from Chen’s province in the administrative
record clearly state that IUDs are inserted
on that same day that “manual abortion[s]”
take place. AR at 467.
The IJ also questioned Chen’s
credibility because he testified that his
wife was sterilized by the family planning
authorities even though there was no risk
of pregnancy inasmuch as he was out of
the country. The family planning
regulations, however, specifically state that
“[f]or those who have two children
already, hospitals should cooperate with
related d e pa rt m ents and enfo rce
sterilization operations on the spot.” AR
at 467. Chen’s testimony that his wife was
sterilized even though he was in the United
States does not strike us as implausible
given the regulations and therefore it does
not support an adverse credibility
determination.
We also are troubled by several
aspects of the BIA decision dismissing
Chen’s appeal. The BIA noted that Chen
failed to support his claim that he was
persecuted for selling Falun Gong books
with “objective evidence that a bookstore
owner may have acquired over the years to
corroborate his claim that he owned a
bookstore and that the bookstore was
closed.” AR at 3. We have explained in
the past that “the BIA may . . . sometimes
require corroboration of otherwise-credible
testimony.” Abdulai, 239 F.3d at 545. In
Abdulai, id. at 554, we deferred to the
three-part inquiry developed by the BIA in
In re S-M-J, 21 I. & N. Dec. 722 (1997),
for analyzing whether an alien should have
offered corroborating evidence. The three-
part test requires the BIA to: (1) identify
the facts for which it was reasonable to
expect corroboration; (2) conduct an
inquiry as to whether the applicant has
provided corroborating evidence; and (3)
if he or she has not provided such
corroborating evidence, address whether
the applicant adequately has explained his
or her failure to do so. Mulanga, 349 F.3d
at 133-34; Abdulai, 239 F.3d at 554. In
this case the BIA failed to follow the test
S-M-J set forth and explain why it was
reasonable to expect such corroboration
and whether Chen adequately explained
his failure to provide it.
The BIA also explained that Chen

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had failed to prove a well-founded fear of
persecution on account of China’s coercive
family practices because he acknowledged
that he would not face sterilization if he
returned to China. However, as we
explained above, if the IJ and BIA found
Chen credible, he would be eligible for
asylum under the BIA’s decision in In re
C-Y-Z, 21 I. & N. Dec. at 918, because he
stands in the shoes of his wife who was
subject to forced abortions and coerced
sterilization. Therefore, even assuming
that Chen would not face sterilization
himself if he returned to China, this
circumstance would not affect his
eligibility for asylum.
We also note that the BIA rejected
the validity of the two abortion certificates
submitted by Chen bec ause the
Department of State’s country report states
that “such purported certificates, if they
exist at all, may be documents issued to
women who voluntarily submit to an
abortion and are entitled to the resulting
benefits.” AR at 2, 361-62, 364-65. We
previously have questioned such wholesale
reliance on the Department of State’s
country reports, quoting with approval
Galina v. INS, 213 F.3d 955, 959 (7th Cir.
2000), that “[t]he country report is
evidence and sometimes the only evidence
available, but the Board should treat it
with a healthy skepticism, rather than, as is
its tendency, as Holy Writ.” Lin v. INS,
238 F.3d 239, 248 (3d Cir. 2001); see also
Ezeagwuna, 325 F.3d at 407. The BIA
“ c a n n o t h i d e b e h in d t h e S t a te
Department’s letterhead.” Lin, 238 F.3d at
246. Therefore, it erroneously rejected the
validity of the abortion certificates based
on nothing more than the country report.
While we recognized in Liu v.
Ashcroft, 372 F.3d 529, 534 (3d Cir.
2004), that remand is appropriate where
“we have made a legal determination (e.g.,
regarding admissibility of evidence) that
fundamentally upsets the balancing of
facts and evidence upon which an agency’s
decision is based,” that decision is
inapplicable here. In Liu we made clear
t h a t the impro p e r r e je c t io n o f
unauthenticated abortion certificates by the
IJ infected the adverse credibility
determination. But the differences
between Liu and this case are apparent.
The discrepancies in the testimony of the
Lius were much less dramatic than the
differences in Chen’s airport interview and
his testimony before the IJ. Furthermore,
the IJ’s rejection in Liu of the petitioners’
credibility was intertwined inextricably
with his unwillingness to consider the
abortion certificates because they were not
authenticated. In contrast, here the IJ’s
adverse credibility determination related to
the discrepancy between the airport
interview and Chen’s testimony as to his
relationship with Falun Gong and thus was
separate and apart from the IJ’s improper
speculation as to the insertion of the IUD
on the same day as the abortions, among
other stated grounds. We therefore
conclude that Liu does not compel us to
remand this case to the BIA or even justify
us in doing so.
V. CONCLUSION

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While we have noted our
difficulties with the decisions of both the
IJ and the BIA, as we explained above,
“the overriding consideration here must be
the extraordinarily deferential standard
m a n d a t e d b y E l i a s - Z a c a r i a s . ”
Abdulrahman, 330 F.3d at 598. After
reviewing the administrative record we
find that the record does not compel a
contrary credibility finding here. The
inescapable conclusion that we must draw
is that there are unimpeachable bases on
which to arrive at the conclusion that the IJ
and BIA did that Chen was not credible
and thus he was not entitled to asylum or
the withholding of removal. For all the
reasons we have stated, we will deny the
petition for review.

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