Chen v. Atty Gen USA

Opinions of the United

2005 Decisions States Court of Appeals

for the Third Circuit

12-29-2005

Chen v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 03-4887

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005

Recommended Citation

"Chen v. Atty Gen USA" (2005). 2005 Decisions. Paper 4.

http://digitalcommons.law.villanova.edu/thirdcircuit_2005/4

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2005 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 03-4887

XIA YUE CHEN,

Petitioner

v.

ALBERTO R. GONZALES, ATTORNEY GENERAL OF

THE UNITED STATES

Respondent

On Petition for Review from the Board of Immigration

Appeals

Agency No. A78-746-838

Submitted Under Third Circuit LAR 34.1(a): January 13,

2005

Before: SCIRICA,* Chief Circuit Judge, ROTH, Circuit

Judge, and IRENAS,** Senior District Judge.

(Filed December 29, 2005)

Norman K.W. Wong, Esquire

401 Broadway, Suite 1205

New York, NY 10013

Counsel for Petitioner

Peter D. Keisler

Assistant Attorney General

Civil Division

Margaret J. Perry

Senior Litigation Counsel

Mary Jane Candaux

Douglas E. Ginsburg

Jennifer L. Lightbody

John D. Williams

*

This case was originally submitted to the three judge panel

of Roth, Chertoff and Irenas. Judge Chertoff subsequently

resigned and Chief Judge Scirica was designated as the third

member of the panel.

**

Honorable Joseph E. Irenas, Senior United States District

Judge for the District of New Jersey, sitting by designation.

2

United States Department of Justice

Office of Immigration Litigation

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

Counsel for Respondent

OPINION OF THE COURT

IRENAS, Senior United States District Judge.

Petitioner Yue Xia Chen (“Chen”) petitions for review of

the decision of the Board of Immigration Appeals (“BIA”)

denying her application for asylum, withholding of removal, and

protection under the Convention Against Torture. The focus of

Chen’s argument is that she was subject to a forced abortion

which made her eligible for refugee status in this country. The

principal issue on this Petition for Review is whether the

Immigration Judge (“IJ”) properly determined that her testimony

on this issue lacked credibility and was insufficiently

corroborated. Although we find that the IJ did not make the

separate credibility finding required by In re S-M -J-, 21 I. & N.

Dec. 722, Interim Decision 3303 (BIA 1997), 1997 WL 80984,

his decision to deny the Petition for Review based on a

determination that Chen did not meet her burden of proof by

adequately corroborating her story was a proper application of

the principles set forth in Abdulai v. Ashcroft, 239 F.3d 542,

3

554 (3d Cir. 2001).

I.

Chen, a citizen of the People’s Republic of China,

entered the United States at St. John in the United States Virgin

Islands without inspection on or about October 20, 2001. The

INS issued a Notice to Appear, alleging that Chen was

inadmissible because she was present in the United States

without being admitted or paroled, in violation of 8 U.S.C. §

1182(a)(6)(A)(i). Such a person is removable under 8 U.S.C. §

1227(a)(1). Chen conceded her removability, but filed an

application for asylum under 8 U.S.C. § 1158 and withholding

of removal under 8 U.S.C. § 1231(b)(3), and sought protection

under the Convention Against Torture.1 Following a hearing, an

Immigration Judge (“IJ”) denied her application on October 1,

2002. Chen appealed the IJ’s decision to the BIA, which

affirmed the IJ’s decision without opinion on December 16,

2003. This Petition for Review followed.

II.

To qualify for asylum, Chen must demonstrate that she

meets the statutory definition of “refugee” under the

1

United Nations Convention Against Torture and Other

Cruel, Inhuman, or Degrading Treatment or Punishment, G.A.

Res 39/46, U.N. GAOR, 39th Sess., Supp. No. 51, at 197, U.N.

Doc. A/39/51 (1984).

4

Immigration and Nationality Act, which states generally that a

refugee is:

[A]ny person who is outside any country of such person's

nationality . . . and who is unable or unwilling to return

to, and is unable or unwilling to avail himself or herself

of the protection of, that country 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). This definition has been amended to

specifically address Congress’ concern with coercive family

planning practices, by providing, inter alia, that anyone who has

been “forced to abort a pregnancy . . . shall be deemed to have

been persecuted on account of political opinion.” Id.

Withholding of removal does not rely on the perspective

of the applicant’s well founded fear, but is instead appropriate

only if the Attorney General determines that there is a “clear

probability” that the alien’s life or freedom would be threatened

upon her removal to a particular country. INS v. Stevic, 467

U.S. 407, 412 (1984); see also 8 U.S.C. § 1231(b)(3)(A).

The Convention Against Torture has been implemented

by regulations codified at 8 C.F.R. §§ 208.16 and 208.18 which

require withholding of removal for an alien who can show that

it is more likely than not that she will be tortured by the

government or with its acquiescence upon removal to a

particular country. The regulations define torture as “an extreme

form of cruel and inhuman treatment,” but not “lesser forms of

5

cruel, inhuman or degrading treatment or punishment not

constituting torture.” 8 C.F.R. § 208.18; see also 8 U.S.C. §

1231 note (1998) (United States Policy With Respect to the

Involuntary Return of Persons in Danger of Subjection to

Torture).

III.

Where, as here, the BIA affirms the IJ’s decision without

opinion, “we review the IJ’s opinion and scrutinize its

reasoning.” Dia v. Ashcroft, 353 F.3d 228, 245 (3d Cir. 2003)

(en banc). Review of an IJ decision is conducted under the

substantial evidence standard which requires that administrative

findings of fact be upheld “unless any reasonable adjudicator

would be compelled to conclude to the contrary.” 8 U.S.C. §

1252(b)(4)(B); Zheng v. Gonzales, 417 F.3d 379, 381 (3d Cir.

2005). “Adverse credibility determinations are factual findings

subject to substantial evidence review.” Id.; Tarrawally v.

Ashcroft, 338 F.3d 180, 184 (3d Cir. 2003). We will defer to

and uphold the IJ’s adverse credibility determinations if they are

“supported by reasonable, substantial, and probative evidence on

the record considered as a whole,” INS v. Elias-Zacarias, 502

U.S. 478, 481 (1992), but such findings must be based on

inconsistencies and improbabilities that “go to the heart of the

asylum claim.” Id.; see also Gao v. Ashcroft, 299 F.3d 266, 272

(3d Cir. 2002).2 “[D]eference is not due where findings and

2

The REAL ID Act of 2005 was adopted on May 11, 2005.

Pub. L. No 109-13, 119 Stat. 231 et seq. This law created new

standards to guide a finder of fact in making credibility

6

conclusions are based on inferences or presumptions that are not

reasonably grounded in the record as a whole.”

Balasubramanrim v. INS, 143 F.3d 157, 161 (3d Cir. 1998).

IV.

A.

We begin with Chen’s asylum claim. At the hearing

before the IJ Chen testified 3 that she was born on January 1,

1980, in a village in Fujian Province. In 1999 she began

working as a salesperson in a store associated with a privately

owned jewelry factory. Chen became romantically involved

with a young man who worked at the factory. Both of them

lived for some time in a dormitory provided for the company’s

workers. Toward the end of February, 2000, Chen suspected

she was pregnant and told her boyfriend. On March 1, 2000,

they went to a private doctor recommended by a manager at the

factory. This doctor confirmed that she was approximately one

month pregnant, although the record does not include the name

determinations in proceedings involving removal of aliens. See

REAL ID Act of 2005, § 101(a)(3), (c), and (d), 119 Stat. at

303-304. These three amendments will be codified at 8 U.S.C.

§ 1158(b)(1)(B)(iii), § 1231(b)(3)(C), and § 1229a(c)(4)(C),

respectively. However, these new standards apply only “to

applications for asylum, withholding, or other relief from

removal” made after the effective date of the Real ID Act. See

id. at § 101(h)(2), 119 Stat. at 305.

3

Chen’s testimony was given in a Chinese dialect referred to

as “Foo Chow” and translated by an official interpreter.

7

of the doctor, an affidavit from the doctor, or any medical

records maintained by the doctor.

According to Chen’s testimony, Chinese law permits 20

year-old women to marry. However, she could not marry her

boyfriend because he was not yet 22 years of age, the minimum

legal age of consent for a man. A few days after her visit to the

doctor she went to live with her paternal aunt to “hide,” having

obtained a three-month leave of absence from her employer on

the pretext of needing to care for her grandfather. This decision

was based on her belief that Chinese officials would not allow

her to have the baby.

Chen testified that on April 20, 2000, four “village

4

cadres” came to her aunt’s house, where Chen was hiding to

conceal her pregnancy, and told her that they had learned from

the neighbors that she was pregnant. How these neighbors or

the cadres learned of her pregnancy is not explained. She was

obviously trying to keep it a secret, and it does not appear that

her pregnancy was yet visible. Indeed, she denied being

pregnant but was told by the cadres that she still needed to go

with them and submit to a physical examination. Chen testified

that she was taken to the hospital where she was forced to

undergo an abortion. She stated that while at the hospital she

4

Neither Chen’s testimony nor the father’s letter make the

meaning of “village cadre” clear. The term “cadre” may be used

by asylum applicants because of its perceived negative

connotation. It appears in numerous opinions. See, e.g., Wang

v. United States, 423 F.3d 260, 262 (3d Cir. 2005); Zheng v.

Gonzales, 417 F.3d 379, 382 (3d Cir. 2005); Chen v. Ashcroft,

376 F.3d 215, 218 (3d Cir. 2005).

8

begged the cadres to let her go home and actually resisted them.

At that point, two of the cadres held her hands and a third cadre

repeatedly slapped her and called her a “shameless woman from

my village.” (AR 59.) Chen stated that she lost her will to resist

and collapsed, at which point two doctors dragged her into an

operating room and performed the abortion.

B.

Corroboration is not necessarily required to establish a

petitioner’s right to asylum, and relief may be granted solely on

the credible testimony of the applicant. 8 C.F.R.

§ § 208.13(a), 208.16(b). In asylum and withholding of

removal cases, however, the BIA has adopted rules which

require corroboration in instances where it is reasonable to

expect such proof from a witness and there is no satisfactory

explanation for its absence. In re S-M-J-, 21 I. & N. Dec. 722,

Interim Decision 3303 (BIA 1997), 1997 WL 80984. These

rules were sustained in Abdulai v. Ashcroft, 239 F.3d 542, 551-

552 (3d Cir. 2001), in which the Court observed that even where

an applicant is credible, corroboration may be required if the

applicant is to meet her burden of proof. Id. at 554.5

The Real ID Act of 2005 provides that “[no] court shall

reverse a determination made by the trier of fact with respect to

the availability of corroborating evidence . . . unless the court

5

A credible asylum claimant may fail to meet her burden of

proof for reasons other than a lack of corroboration. See, e.g.,

Ahmed v. Ashcroft, 341 F.3d 214, 216 (3d Cir. 2003)(credible

alien did not meet burden of proof for asylum because feared

treatment did not amount to persecution).

9

finds . . . that a reasonable trier of fact is compelled to conclude

that such corroborating evidence is unavailable.” § 101(e), Pub.

L. No. 109-13, 119 Stat. 231, 305, to be codified at 8 U.S.C. §

1252(b)(4)(D). This provision was effective on passage of the

REAL ID Act, May 11, 2005, and applies to any case “in which

the final administrative removal order is or was issued before,

on, or after such date.” Id. § 101(h)(3), 119 Stat. at 305-306.

See Zheng, 417 F.3d at 383 n. 2. Thus, this standard of review

applies in this case.

C.

Chen’s only corroboration for her version of events was

an unsworn letter from her father, who was still in China, stating

that Chen had been seized by “village cadres” from her aunt’s

home and taken to the hospital where she was forced to undergo

an abortion. (AR 125.) Not only was the father not subject to

any cross examination, but much of his affidavit appears to be

based solely on what his daughter (or others) told him.

To support her claim Chen relies heavily on a document

which she referred to as an “abortion certificate.” (AR 72.)

She claimed that this document was issued by the hospital that

performed the abortion. The record is unclear as to when the

certificate was actually prepared or issued, even though it bears

the date April 20, 2000. Chen did not testify that the certificate

was given to her at the time of her abortion, and her testimony

indicated that she was at the hospital for only 35-40 minutes.

When asked by the IJ how she came into possession of the

certificate, Chen stated that at the request of her father it had

been brought to the United States by an unnamed cousin who

was coming to this country as an immigrant. There was no

10

testimony as to how the cousin actually obtained the document.6

The IJ questioned whether this document was genuine,

or, alternatively, whether it indicated that Chen voluntarily had

an abortion. Relying on the Department of State’s China:

Profile of Asylum Claims and Country Conditions (“Country

Report”),7 dated April 14, 1998, the IJ concluded that this

certificate was not adequate proof of a forced abortion. The

Country Report notes that although official policy in China does

not authorize physical force to coerce women to submit to an

6

This abortion certificate was not authenticated in the manner

set forth in 8 CFR § 287.6, and Petitioner appears to have made

no effort to obtain such authentication. Although the IJ did not

rely on the absence of such authentication or attempt to bar the

certificate from evidence, it is clear that he questioned both its

authenticity and meaning. Failure to comply with § 287.6 does

not, in any case, result in a per se exclusion of documentary

evidence, and a petitioner is permitted to prove authenticity in

another manner. Liu v. Ashcroft, 372 F.3d 529, 533 (3d Cir.

2004). However, in this case there is not only a lack of direct

evidence of the abortion certificate’s authenticity, but a lack of

evidence which might explain the circumstances or context of

the issuance of that certificate.

7

Reliance on Country Reports is permitted by 8 C.F.R. §§

208.12 and 240.69. Rapidly changing conditions may on

occasions render a country report’s information inaccurate. See

Berishaj v. Ashcroft, 378 F.3d 314, 329 (3d Cir. 2004).

However, neither party in this case has offered proof of any such

change.

11

unwanted abortion, this practice still occurs, particularly in

certain areas of the country where population authorities are

under pressure to meet population targets.8 (AR 266.)

According to the Country Report, the United States

Embassy in China is “unaware” of the practice of issuing

abortion certificates.9 Embassy officials are familiar with one

type of document that is generally issued upon a patient’s

request after a voluntary abortion for the purpose of supporting

a request for sick leave from work, a right provided by Chinese

law. This conclusion is consistent with the common sense

notion that government officials who force a woman to abort a

child would hardly be likely to issue a certificate attesting to that

fact, especially since the Country Report indicates that use of

such force is not official government policy. Indeed, the

existence of a hospital-issued abortion certificate might support

a reasonable inference that the abortion attested to in the

certificate was voluntary and not procured by government force.

The abortion certificate, if believed to be genuine, might support

8

Most Chinese asylum cases involving coercive family

planning practices come from three provinces, including Fujian

Province where Petitioner resided. The Country Report notes

that it “is not aware of any forced abortions [in Fujian Province]

. . . (but could not exclude the possibility).” (AR 269.)

9

The Country Report notes that in southeast China, where

Fujian Province is located, there is a major problem with false

documents. When an American Consulate General asked Fujian

officials to investigate “suspected fake documents,” 66 of 109,

“were determined to be incorrect or fake.” (AR 279-280.)

12

the conclusion that Chen did undergo an abortion. However,

that a young women in Chen’s circumstances voluntarily chose

to have an abortion would hardly be an unusual event in China

given the government’s strong push for population control and

the personal predicament in which petitioner found herself, and

thus it has no probative value in establishing that any such

abortion was involuntary.

In an adversarial system of adjudication, it is typical that

each side to the dispute has access to facts which might support

its position or contradict the assertions of the other side.

Notwithstanding the immense resources of the United States,

asylum hearings which sometimes depend on narrow and

specific factual findings often put the government at a

substantial disadvantage. In a forced abortion case the

Petitioner testifies to events which support her claim, events

which have often taken place in a remote part of the world. The

United States cannot, as a practical matter, send investigators to

interview doctors, neighbors, or family members, inspect

medical records, or use any other discovery techniques which

would be routine in domestic litigation. In this context the need

for corroboration is particularly important.

The IJ found that the only real corroboration for

Petitioner’s story was the father’s affidavit and the abortion

certificate, a document whose authenticity he questioned and a

document which on its face is silent as to whether the abortion

referred to was procured without consent. He identified a

variety of factual areas where corroboration might have been

provided and noted that the affidavit from her father

demonstrated that there were lines of communication open with

China. As noted earlier, the purported abortion certificate was

brought to the United States by a cousin of Petitioner, who must

13

have been able to communicate with that cousin prior to her

departure for the United States. There is nothing in the record

to suggest that a “reasonable trier of fact” would be “compelled

to conclude that corroborating evidence is unavailable.” REAL

ID Act, § 101(e), 119 Stat. at 305. Even using the pre-REAL

ID Act standard for reviewing IJ determinations concerning the

availability of corroboration, the IJ’s finding that it was

reasonable to expect more corroboration and that there was no

satisfactory explanation for its absence was supported by

substantial evidence in the record.

The BIA’s rule on corroboration in In re S-M-J- involves

a three step analysis: (1) an identification of facts for which it is

reasonable to expect corroboration; (2) the presence or absence

of such corroboration in the record; and (3) the adequacy of

applicant’s explanation for its absence. Abdulai, 239 F.3d at

554.

In his opinion the IJ identified many factual areas where

corroboration might have been expected but was lacking,

including: (i) the authenticity and meaning of the purported

abortion certificate (there were no other hospital records

confirming that Chen had undergone an abortion on April 20,

2000); (ii) the circumstances surrounding her residence in her

aunt’s home and her forced removal to the hospital (there was

no affidavit from the aunt); 10 (iii) her leave of absence from

work during the period following the doctor’s determination that

she was pregnant (there were do documents indicating either a

request for leave or the grant of such a request); (iv) details

concerning the young man who impregnated her, including an

identity card, and some form of employment verification (“Give

me documentation that this man exists” (AR 55.)); (v)

documentation of her residency in the factory dormitory where

10

Although not mentioned by the IJ, there is no indication in

the record as to how the aunt’s neighbors found out she was

pregnant at such an early stage of the pregnancy.

14

her relationship with her boyfriend developed, particularly since

her asylum application made no reference to her living in the

dormitory; and (vi) medical records of the doctor who

diagnosed her pregnancy.

The IJ properly found that there were lines of

communication open between Chen and China, and there was no

real attempt to explain the absence of corroboration. The IJ

himself noted that he might understand the reluctance of a

doctor to get involved in a situation where there was a forced

abortion, but there is no indication that Chen or her family

attempted to contact the doctor to see if he or she would make

those records available. The three part analysis described in

Abdulai was properly performed. He clearly identified facts for

which it was reasonable to expect corroboration, he properly

found that such corroboration was lacking, and he analyzed the

lack of adequate explanations for Chen’s failure to produce

corroboration.

D.

In addition to finding inadequate corroboration of

Petitioner’s story, the IJ purported to find that her testimony

lacked credibility. The internal consistency of a witness’s

testimony, its consistency with other testimony, its inherent

(im)probability, as well as the witness’s tone and demeanor are

important factors in determining credibility, although excessive

focus on insignificant testimonial inconsistencies to support a

finding of lack of credibility may not be justified. See Gao v.

Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002). The Third Circuit

has also recognized that an IJ is normally in the best position to

make credibility determinations as he is “uniquely qualified to

decide whether an alien’s testimony has about it the ring of

truth.” Abdulrahman v. Ashcroft, 330 F.3d 587, 597 (3d Cir.

2003) (quoting Sarvia-Quintamilla v. INS, 767 F.2d 1387, 1395

(9th Cir. 1985).

It might seem intuitive that a lack of corroboration could

cast doubt on the veracity of a witness’s testimony, even a

15

witness whose story was delivered with an appealing demeanor,

internally consistent, and not inherently improbable. Indeed,

such a characterization might well describe the pitch of a

flimflam man. However, it is clear that the BIA’s own rule

requires a credibility determination to be independent of an

analysis of the sufficiency of an applicant’s evidence. “A failure

of proof is not a proper ground per se for an adverse credibility

determination. The latter finding is more appropriately base

upon inconsistent statements, contradictory evidence, and

inherently improbable testimony.” Abdulai, 239 F.3d at 551 n.

6 (quoting In re S-M-J- , 1997 WL 80984 *731).

While the IJ finds that Chen “deliberately lied in order to

obtain asylum” (AR 56), a reading of the hearing transcript and

his decision makes clear that this conclusion flows in substantial

part from a failure of proof occasioned by a lack of

corroboration. While there are some discrepancies in her

testimony, it cannot be said that his credibility determination

was based “only [on] an analysis of the internal consistency and

plausibility of [Chen’s] claim,” Id. at 551 n.6, or from her

demeanor or tone in testifying. Rather, the IJ repeatedly points

to various areas where needed corroboration was lacking.

Indeed, his conclusion that she was not credible is immediately

preceded by a laundry list of areas where corroboration was

lacking. (AR 55-56.) The IJ seems to have impermissibly

blurred the line between the credibility of a claimant and the

adequacy of proof to support the claim of asylum.

If we assume that the IJ did not make a valid credibility

determination, it does not affect the result in this case. As noted

earlier, even a credible asylum applicant may be required “to

supply corroborating evidence in order to meet [her] burden of

proof.” Id. at 554. If the IJ’s decision in this case is supported

by substantial evidence in the record, then his failure to make a

valid credibility determination would not bar this Court’s denial

of the petition for review without a remand. See Kayembe v.

Ashcroft, 334 F.3d 231, 235 (3d Cir. 2003) (“If the BIA

decision [denying asylum] can be found to be supported by

16

substantial evidence, even if [an alien’s] testimony is credible,

then the absence of a finding on credibility is not significant to

the disposition of the case.”).11 As noted above, both the

11

In Kayembe this Court reviewed a decision of the BIA

which did not merely adopt the decision of the IJ who had

denied the petition. The IJ found the applicant not credible, but

this determination was reversed by the BIA which did not,

however, do its own credibility analysis. Relying on Abdulai,

the Court found that “[i]t is possible, however, that Kayembe’s

testimony alone, even if found to be credible, may not meet his

burden of proof.” Id. at 238. The BIA found inadequate

corroboration, but failed to properly perform the three part

analysis required by Abdulai. Thus, with neither a valid

credibility determination nor a valid corroboration analysis, the

matter was remanded to the BIA as its decision could not be

meaningfully reviewed. Id. at 238-239.

In Miah v. Ashcroft, 346 F.3d 442 (3d Cir. 2003) the

matter was also remanded due to the BIA’s failure to conduct its

own proper corroboration analysis. Here the BIA reversed the

IJ’s finding of non-credibility and specifically “found Miah to

be credible.” Id. at 440. The opinion contemplated that on

remand the BIA would send the case back to the IJ for a

determination of whether the IJ’s perception of the need for

corroboration would be influenced by the BIA’s finding of

credibility overruling the earlier IJ finding of non-credibility.

Id. In Chen’s case there was no administrative finding of

credibility, since the BIA merely adopted the IJ’s decision.

Because the IJ’s credibility determination was itself based

primarily on a lack of corroboration, there is nothing to indicate

that on remand the IJ would modify his perceived need for

corroboration, even with the knowledge that his finding of non-

credibility was legally erroneous.. This Court is not determining

that Chen’s testimony was credible, as the BIA did in Miah, but

merely giving no weight to the IJ’s credibility finding in

17

Country Report’s conclusion that forced abortion is not

governmental policy in China,12 coupled with the almost total

lack of corroboration of Chen’s story, constitutes substantial

evidence sufficient to deny the petition for review.

V.

We have reviewed the record with respect to Chen’s

claims under 8 U.S.C.

§ 1231(b)(3) and the Convention Against Torture, and find that

there is an absence of substantial evidence to back either claim.

Both of these claims are based on the allegation that if Chen is

returned to China, she will be prosecuted and imprisoned for

illegally exiting China in the first instance. Chinese law barring

illegal emigration is generally applicable to all illegal emigrants

who return to China, and there is nothing in the record to

support a conclusion that either Chen would be singled out for

particularly harsh punishment or the nature of the punishment

would be severe enough to amount to persecution or torture. See

Chang v. INS, 119 F.3d 1055, 1060-61 (3d Cir. 1997); Abedini

v. INS, 971 F.2d 188, 191 (9 th Cir. 1992).

VI.

Based on the foregoing, the Petition for Review of the

decision of the IJ denying asylum under 8 U.S.C. § 1158 and

denying withholding or removal under 8 § U.S.C. 1231(b)(3)

and the Convention Against Torture is hereby denied.

reviewing the record to determine if the IJ’s decision was

supported by substantial evidence.

12

Although the Country Report also states that coercive

abortions may occur in some rural areas, “[j]ust because the

State Department reports cuts both ways, however, does not

mean that it does not constitute substantial evidence.”

Kayembe, 334 F.3d at 236.

18