Xiu Ying Zhao v. JOHN ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES On

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-1267
XIU YING ZHAO,
Petitioner
v.
JOHN ASHCROFT,
ATTORNEY GENERAL OF THE UNITED STATES
On Petition for Review of an Order of the
Immigration and Naturalization Service
Board of Immigration Appeals
(BIA No. A77-552-287)
Submitted Under Third Circuit LAR 34.1(a)
April 15, 2004
Before: RENDELL, STAPLETON and LAY*, Circuit Judges.
(Filed: April 16, 2004)
OPINION OF THE COURT
*Honorable Donald P. Lay, Senior Circuit Judge for the Eighth Circuit, sitting by
designation.

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RENDELL, Circuit Judge.
Zhao Xiu Ying, a citizen of the People’s Republic of China, challenges the denial
of her applications for asylum, withholding of removal, and protection under the
Convention Against Torture (“CAT”). An immigration judge (“IJ”) denied Zhao’s
applications on August 1, 2000, and ordered her removed to China. The Board of
Immigration Appeals (“BIA”) affirmed the IJ’s decision without opinion, pursuant to 8
C.F.R. § 1003.1(e)(4), on October 2, 2002. We have jurisdiction to entertain Zhao’s
timely petition for review under 8 U.S.C. § 1252(a)(1). Because we conclude that
substantial evidence supported the IJ’s decision, we will deny the petition for review.
I.
We will recite only those facts that are relevant to the issues before us, as we write
exclusively for the parties. Zhao married her husband in 1982, and the couple resided in
Wenzhou City. When she gave birth to her first child in 1983, she was fined under
China’s population control policies for failing to obtain a birth permit. According to
Zhao, she was also informed at that time that she had to have an IUD inserted to prevent
her from having additional children. However, she testified at her asylum hearing that
she avoided the procedure by bribing the director of her local family planning office.
Zhao gave birth to her second child in 1985. The family planning policies then required
that Zhao be sterilized, but Zhao testified that she persuaded local officials, upon posting
a security deposit, to insert an IUD and fine her again instead. After the IUD was

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1The Attorney General may grant asylum to an alien who establishes that she is a
“refugee,” which is defined in 8 U.S.C. § 1101(a)(42)(A). See 8 U.S.C. § 1158(b)(1)
(2003). Under the statutory definition, an alien can establish that she has been
“persecuted on account of political opinion” by showing that she “has been forced to
abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for
failure or refusal to undergo such a procedure.” 8 U.S.C. § 1101(a)(42)(A).
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inserted, she was required to have checkups twice a year – each June and December.
In May of 1988, Zhao secretly had her IUD removed by a distant relative who was
a doctor. She testified that she went into hiding after becoming pregnant a third time, and
she gave birth to her youngest child on September 3, 1989. According to Zhao, she left
that child with her uncle to avoid punishment under the family planning laws, and she had
the same doctor secretly reinsert her IUD the following month. Zhao alleges that she was
forcibly sterilized in December of 1992 after she brought her third child home to begin
attending school. She stated that she refused to pay a fine that accompanied the
sterilization, and that as a result, family planning officials took some of her property. In
response, she testified that she went to the family planning office to protest the laws.
Neighbors and observers near the office allegedly joined in support and urged Zhao to
flee when officials came to seize her. She testified that she went to hide at her uncle’s
home, and then fled the country when she learned that officers intended to arrest her.
After she left China, Zhao traveled through Cambodia and Canada before coming
to the United States. She filed a timely application for asylum and submitted various
documents in support of her claims.1 Following a hearing on her application, the IJ

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2Because the more relaxed standard for granting asylum was not met, Zhao’s claims for
withholding of removal and relief under the CAT, both of which are evaluated under
more stringent standards of proof, were denied as well.
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refused to grant asylum, finding that Zhao was not credible.2 This determination was
based on a number of inconsistencies and implausibilities in her testimony and her asylum
application, several of which we will discuss below. The BIA summarily affirmed the
IJ’s decision.
II.
Where the BIA affirms without opinion, the IJ’s decision becomes the final agency
determination for purposes of our review. 8 C.F.R. § 1003.1(e)(4) (2003); Dia v.
Ashcroft, 353 F.3d 228, 245 (3d Cir. 2003) (en banc). In reviewing the IJ’s decision, we
apply the substantial evidence standard, which allows us to grant the petition and vacate
the IJ’s determination only if the evidence is “so compelling that no reasonable factfinder
could fail to find” in Zhao’s favor. INS v. Elias-Zacarias, 502 U.S. 478, 484 (1992).
In her petition, Zhao essentially challenges the IJ’s credibility determination, as
that was the dispositive finding that doomed her claim for asylum. As we review such a
determination, we examine whether the IJ provided specific reasons that “bear a
legitimate nexus to the finding” that the petitioner’s claims lack credibility.
Balasubramanrim v. INS, 143 F.3d 157, 162 (3d Cir. 1998). We will generally defer to
an IJ’s credibility findings, so long as they are “conditioned on support in the record.”
Dia, 353 F.3d at 249-50 (quoting El Moraghy v. Ashcroft, 331 F.3d 195, 205 (1st Cir.

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2003)).
III.
Based on medical evidence offered along with Zhao’s application for asylum, the
IJ recognized the fact that Zhao had clearly undergone a sterilization procedure. The key
issue then became whether Zhao offered credible evidence demonstrating that the
sterilization was involuntary. See In re Y-T-L- (Interim Decision), 23 I. & N. Dec. 601
(BIA 2003) (discussing the burdens of proof under the forced sterilization clause of the
statutory definition of “refugee”). The IJ ultimately denied Zhao’s petition because the
only evidence indicating that the sterilization was forced was Zhao’s own testimony,
which the IJ found to be incredible. That determination is our focus on appeal.
In his opinion, the IJ listed at least four major problems with Zhao’s claim. The
first inconsistency involved the gender of Zhao’s third child. In her testimony, Zhao
indicated that the child was a daughter. However, the IJ noted conflicting references in
the narrative accompanying Zhao’s asylum application, where the child was referred to as
“him.” Although there may be explanations for this inconsistency, none are apparent
from the record. Another inconsistency, even more problematic than the first, involved
the dates of Zhao’s third pregnancy. She repeatedly testified that she had her IUD
removed in May of 1988 and that she became pregnant in that same month. However, her
third child was not born until September of 1989, which is sixteen full months after she
allegedly became pregnant. Only after this problem was highlighted on cross-

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examination did Zhao claim that she did not actually get pregnant in May of 1988. Again,
no explanation for this inconsistency is apparent from the record, and it constitutes a
significant piece of evidence supporting the IJ’s decision.
In addition to these inconsistencies, the IJ also addressed aspects of Zhao’s story
that he found to be implausible. For instance, he explained his reluctance to believe
Zhao’s claim that a doctor had agreed to secretly remove her IUD, enabling her to become
pregnant again. In rejecting this piece of Zhao’s story, the IJ explained that he could not
believe that Chinese doctors would risk the severe penalties associated with violations of
the family planning laws by secretly removing and reinserting IUDs. He also questioned
how Zhao had been able to avoid her biannual IUD checkups for the seventeen months
during which her IUD was removed. According to the schedule she described in her
testimony, she would have missed three separate checkups during that time – June 1988,
December 1988, and June 1989. However, she only acknowledged missing one checkup,
and she indicated that her family had informed the officials that she had gone away when
they arrived on that date. The IJ refused to believe that avoiding such a procedure would
be so simple, and Zhao’s explanation did not account for the other two checkups that she
would have missed. These implausibilities constitute further support for the IJ’s decision.
Because we find that these problems with Zhao’s testimony alone form substantial
evidence in support of the denial of her application, we will not discuss the other bases
for the IJ’s decision at length. Suffice it to say that other minor inconsistencies only

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served to buttress the IJ’s adverse credibility finding. In addition to her attack on the IJ’s
credibility determination, Zhao attempts to challenge the invocation of the streamlining
regulations in her case. We have held that the streamlining procedures implemented by
the Attorney General are permissible. Dia, 353 F.3d at 245. As Zhao’s argument on this
point simply restates her contentions regarding the credibility determination – contentions
which we have already rejected – we see no basis for examining the BIA’s decision to
summarily affirm in her case.
IV.
The success of Zhao’s application for asylum was dependent upon a finding that
her testimony regarding the circumstances of her sterilization was credited by the IJ.
Because we find, for the reasons stated above, that substantial evidence supported the IJ’s
adverse credibility finding in this case, we will DENY the petition for review of the
agency’s decision.

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