                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 09a0652n.06

                                              No. 08-3469                                        FILED
                                                                                             Sep 22, 2009
                            UNITED STATES COURT OF APPEALS                             LEONARD GREEN, Clerk
                                 FOR THE SIXTH CIRCUIT


SHIQIANG DONG,                                        )
                                                      )
        Petitioner,                                   )
                                                      )
v.                                                    )    ON PETITION FOR REVIEW FROM A
                                                      )    DECISION OF THE BOARD OF
ERIC H. HOLDER, JR.,                                  )    IMMIGRATION APPEALS
Attorney General,*                                    )
                                                      )
        Respondent.                                   )

        Before: NORRIS, and COLE, Circuit Judges; ADAMS,* District Judge.

        JOHN R. ADAMS, District Judge. Shiqiang Dong, a native and citizen of China,

petitions for review of the Board of Immigration Appeals (“the BIA” or “the Board”)’s order

denying his applications for asylum, withholding of removal, and protection under the

United Nations Convention Against Torture (“CAT”). For the following reasons, we DENY

the petition.

                                             I. Background

        Petitioner left China in July 2003. He traveled to Hong Kong, then Cuba, and

entered the United States from Mexico on August 27, 2003, with the help of smugglers.

Within one year, he filed an application for asylum through counsel. Petitioner sought relief



        *
          Pursuant to Fed. R. App. P. 43(c)(2), Attorney General Eric H. Holder, Jr. has been substituted
for form er Attorney General Michael B. Mukasey as the respondent in this case.

        **The Hon. John R. Adam s, United States District Judge for the Northern District of Ohio, sitting
by designation.
Dong v. Holder
No. 08-3469

based on a claim that he had been persecuted under China’s family-planning laws and was

subject to future persecution on the same ground.

       In his application, the petitioner stated that in 2002, at age 17, he began living in the

city of Fuzhou with Chen Min Huei, his 16-year-old girlfriend. She became pregnant in

February 2003. The pregnancy came to the attention of the local family planning office in

May 2003. Min Huei was forced to have an abortion, and the couple was fined and

ordered to attend an education camp. (See JA 256.)

       Petitioner, who speaks Mandarin Chinese, appeared with counsel at the removal

hearing.   He averred before the Immigration Judge (“IJ”) that he had reviewed his

statements in the asylum application and that the statements were correct and “what [he]

want[ed] to say.” (JA 73-74) However, the petitioner testified (through an interpreter)

before the IJ somewhat differently than what was set forth in his asylum application.

Petitioner’s testimony highlighted the fact that his application lacked significant detail.

       Petitioner testified that he and Min Huei were married in a traditional Chinese

ceremony on February 1, 2003. Her pregnancy was discovered in March 2003. Hoping

to avoid the family-planning cadres, they decided to move. Before doing so, five family-

planning personnel (two women and three men) came to their house. He, Min Huei, and

his mother were all taken to the hospital, where Min Huei was forced to undergo an

abortion. Petitioner testified that when he tried to hold Min Huei’s hand, one of the officials

hit him with a flashlight. He was then pushed to the ground and kicked in the jaw.

Petitioner said that he suffered bone fractures in his hand and later required stitches in his

jaw.
Dong v. Holder
No. 08-3469

       After the abortion, the petitioner decided that he had to leave China. He did not

have money to pay the fine. Petitioner stated that he did not have money for Min Huei to

travel with him, but also later stated that she did not accompany him because she was

unable to obtain a passport.

       In September 2003, the petitioner was served by the Department of Homeland

Security with a Notice to Appear and charged with being inadmissible to the United States

under 8 U.S.C. § 1182(a)(6)(A)(i), for being present without inspection.           Petitioner

conceded, through counsel, that he was removable as charged and filed an application for

asylum and for withholding of removal on March 3, 2004. (JA 252-60)

       After a hearing, the IJ issued an oral decision denying the applications on July 24,

2006. Consequently, the IJ ordered the petitioner removed to China. Oral Decision of the

IJ (JA 25-39).

       The IJ concluded that the petitioner’s testimony on relevant and material facts was

inconsistent with his application. In particular, she noted the difference between the initial

statement that it was his girlfriend who was pregnant and the later assertion that they had

been married in a traditional ceremony. The IJ also observed that the petitioner testified

inconsistently regarding his broken jaw when he first stated that he had not required

medical attention, but thereafter qualified his testimony stating that he had received five

stitches. Petitioner stated in his asylum application that he had learned of Min Huei’s

pregnancy in February 2003, but he testified before the IJ that it was March 2003. His

testimony was that at the time of marriage, he was 19 and she was 18. In fact, given his

December 25, 1985-birthday, the petitioner would have been 17 at the time of the February
Dong v. Holder
No. 08-3469

2003 marriage. He testified that he was following the lunar calendar. The IJ, however,

found that the petitioner did not introduce evidence of that calculation.

       The “major and significant inconsistency,” according to the IJ, was that the petitioner

omitted from his application the fact that he was struck on the hand and sustained a

fractured jaw when he was kicked at the hospital. According to the IJ:

       The respondent in his application is asked specifically what harm or
       mistreatment was directed against him, who caused it, et cetera. Here, the
       respondent states merely that he was fined 5,000 RMB1 and ordered to
       attend a special program for three months. Today, the respondent claims
       the family planning cadre members came to his mother’s home where they
       were living, took all three of them to the hospital. He was struck on his
       hands with an electric flashlight with such severity that his bones were
       fracture[d], pushed to the floor, and then kicked in the jaw, and his jaw was
       broken. Nowhere in his application does the respondent mention this, and
       when on cross-examination asked why this was not mentioned, the
       respondent quite simply did not have any reconcilable statement as to why
       he failed to mention something as significant as his injuries. Respondent
       initially stated that he received no medical attention for his broken jaw on
       direct examination, and then stated he had five stitches placed in his jaw.

(JA 35)

       The IJ also noted the absence of any corroboration. While the petitioner claimed

to have given his attorney a letter from his spouse and pictures of the wedding, they were

never submitted as evidence. He testified that Min Huei was in Japan and they had

communicated on at least one occasion. (JA 85.)

       The Department of Homeland Security (“DHS”) submitted background information

to the IJ suggesting that a coercive one-child policy was not strictly enforced in Fujian (the

province in which the prefecture-level city of Fuzhou is located). One of the exhibits the


       1
        In April 2009, 5,000 RMB was equivalent to approxim ately $730.00 U.S. dollars. See
XE-2Universal Currency Converter at http://www.xe.com /ucc/.
Dong v. Holder
No. 08-3469

government submitted, entitled “China: Profile of Asylum Claims and Country Conditions,

June 2004," (JA 173-224), states: “According to the Fujian Provincial Family Planning

Committee (FPFPC), there have been no cases of forced abortion . . . in Fujian in the last

10 years, but it is impossible to confirm this claim.” (JA 195) Other articles suggest

“rethinking of the one-child policy in China beginning at about the time period [the

petitioner] was there.” (JA 38)

       On cross-examination, the petitioner declared that he had evidence in China that

Min Huei was forced to have an abortion but, because his attorney had not asked for that

evidence, he had not gotten it from China for submission. (JA 87) He further testified that

his parents had not prepared an affidavit stating that he had a Chinese wedding because

they are illiterate. (JA 88) Petitioner stated that his attorney had his wedding picture but,

because the IJ had not asked for pictures, he had not submitted it to the Court. (JA 88, 94-

95) Petitioner also testified that he had not paid the fine assessed by the family planning

authorities, but had the notice “at [his] place.” (JA 90, 94) Moreover, the petitioner claimed

that he did not have documentation of his traditional marriage because his attorney had

not asked for it, and that his attorney had the letter from his girlfriend. (JA 91, 93-94)

       Petitioner, through counsel, appealed to the Board. On March 28, 2008, the BIA

adopted and affirmed the decision of the IJ and dismissed the appeal of the IJ’s order of

removal. (JA 2) The Board was not convinced by the arguments advanced on appeal that

the IJ’s findings of fact, including her adverse credibility assessment, had been shown to

be “clearly erroneous.” See 8 C.F.R. § 1003.1(d)(3)(i). The BIA found significant the fact

that the petitioner did not mention his fractured jaw in the application or submit any
Dong v. Holder
No. 08-3469

corroborating evidence:

       We disagree with the respondent’s argument on appeal that the record does
       not actually contain inconsistencies. The Immigration Judge noted that the
       respondent has not adequately explained the significant inconsistency
       between the respondent’s asylum application and his testimony during the
       hearing. . . . The Immigration Judge further noted that the respondent had
       submitted absolutely no corroborating evidence for his claims other than his
       recollection of events. . . .

(JA 35)

       This petition for review followed.

                                         II. Analysis

A. Standard of Review

       Where, as in this case, the BIA affirms the decision of the IJ and specifically adopts

the particular reasoning of the IJ while supplementing that decision with comments of its

own, we review the IJ’s decision as supplemented by the Board. Lazar v. Gonzales, 500

F.3d 469, 474-75 (6th Cir. 2007). We must sustain a decision by the IJ denying asylum

if that determination is “supported by reasonable, substantial, and probative evidence on

the record considered as a whole.” I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481 (1992). As

we have recognized, “[u]nder this deferential standard, we may not reverse the [IJ's]

determination [as supplemented by the Board] simply because we would have decided the

matter differently.” Koliada v. I.N.S., 259 F.3d 482, 486 (6th Cir. 2001). Rather, to overturn

an IJ’s ruling “we must find that the evidence not only supports [a contrary] conclusion, but

compels it.” Elias-Zacarias, 502 U.S. at 481 n. 1 (emphasis in original).

B. Merits

       Under 8 U.S.C. § 1158(b), the Secretary of Homeland Security or the Attorney
Dong v. Holder
No. 08-3469

General has authority to grant asylum in his or her discretion to any alien who is a

“refugee.” See also Chen v. Gonzalez, 447 F.3d 468, 471-72 (6th Cir. 2006). A refugee

is “any 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 . . . 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)(A). “[A] person who has been forced to abort a

pregnancy . . . , or who has been persecuted . . . resistance to a coercive population

control program, shall be deemed to have been persecuted on account of political opinion.”

8 U.S.C. § 1101(a)(42)(B).

       The burden of proof is on the applicant in an asylum proceeding to establish that he

is a refugee. 8 U.S.C. § 1158(b)(1)(B)(i); 8 C.F.R. § 1208.13(a). An applicant can meet

his burden through testimony alone without having to submit corroboration, so long as his

testimony is credible. 8 C.F.R. § 1208.13(a); Mapouya v. Gonzales, 487 F.3d 396, 406

(6th Cir. 2007). The applicant must show that he has suffered persecution in the past or

has a well-founded fear of future persecution should he return to his native country. 8

C.F.R. § 1208.13(a); see also Mikhailevitch v. I.N.S., 146 F.3d 384, 389 (6th Cir. 1998).

Even if the applicant establishes that he is a refugee within the meaning of the statute, he

must also show that he merits a favorable exercise of discretion by the Secretary of

Homeland Security or the Attorney General. Kaba v. Mukasey, 546 F.3d 741, 747 (6th Cir.

2008) (noting the Court’s two-step inquiry).

       Pursuant to 8 U.S.C. § 1231(b)(3)(A), removal to a particular country will be withheld
Dong v. Holder
No. 08-3469

“if the Attorney General decides that the alien’s life or freedom would be threatened in that

country because of the alien’s race, religion, nationality, membership in a particular social

group, or political opinion.” In order to prevail on his petition, the petitioner “must show that

there is a ‘clear probability’ that []he would be subject to persecution.” Fang Huang v.

Mukasey, 523 F.3d 640, 651 (6th Cir. 2008) (quoting Kouljinski v. Keisler, 505 F.3d 534,

544 (6th Cir. 2007)). Because this standard is higher than that governing eligibility for

asylum, an alien who has failed to establish a well-founded fear of persecution for asylum

purposes is necessarily ineligible for withholding of removal. Kaba, 546 F.3d at 751.

       An alien may qualify for protection under the CAT if he establishes that “it is more

likely than not that he . . . would be tortured if removed to the proposed country of

removal.” 8 C.F.R. § 1208.16(c)(2). Although an alien need not show that the torture be

“on account of” a protected ground as is required for asylum or withholding of removal, the

alien’s burden of proof is higher than asylum and instead matches the burden associated

with withholding of removal. See Kaba, 546 F.3d at 751. An alien will not be able to meet

his burden of proof for protection under the CAT if his claim for such protection has the

same factual predicate as his asylum and withholding of removal claims and he has not

met his burden of proof for those forms of relief. See, e.g., id. (citing Liti v. Gonzales, 411

F.3d 631, 641 (6th Cir. 2005)).

       Petitioner argues generally that the credibility determination of the IJ as

supplemented by the Board was in error. The argument to overcome the conclusions of

the Board and the IJ is not made particularly forcefully, and the petitioner does not cite to

specific testimony. Furthermore, he does not cite to specific evidence that was overlooked.
Dong v. Holder
No. 08-3469

The court agrees with the IJ and the Board that petitioner’s application does not include

crucial elements of the events on which he relies for relief.

       An IJ’s adverse credibility finding is reviewed under the deferential substantial

evidence standard. Kaba, 546 F.3d at 748. It must be based upon issues “that go to the

heart of the applicant’s claim.” Chen, 447 F.3d at 472 (quoting Sylla v. I.N.S., 388 F.3d

924, 926 (6th Cir. 2004)). Here, the IJ determined that the petitioner was not credible in

large part because of the discrepancies between his asylum application and his oral

testimony. See Amir v. Gonzales, 467 F.3d 921, 925 (6th Cir. 2006) (basing an adverse

credibility finding on a comparison of the petitioner’s testimony with the statements made

in his asylum application); Kaba, 546 F.3d at 749-50 (upholding an adverse credibility

finding where the asylum application did not reference the type of testimonial assertions

later made). As in Amir, the court concludes that any reasonable judge would not be

compelled to reach a contrary conclusion from the one reached here by the IJ and affirmed

by the Board. Thus, the IJ’s credibility finding was supported by substantial evidence.

       We also conclude the IJ and the Board reasonably decided that there were

inconsistencies between the petitioner’s asylum application and testimony, and within his

testimony. With the exception of the inconsistency between the petitioner’s application and

testimony regarding his age at the time of the relevant events, these inconsistencies are

substantial evidence in support of the adverse-credibility determinations. Moreover, the

background information submitted by the DHS provides a basis for objective skepticism of

the petitioner’s claims.

       In the absence of credible testimony, the IJ determined that the petitioner had not
Dong v. Holder
No. 08-3469

satisfied his evidentiary burden.     To counter the credibility questions raised by the

inconsistencies between his application and oral testimony, the petitioner could have

rehabilitated his claims with corroborative evidence. See Pilica v. Ashcroft, 388 F.3d 941,

954 (6th Cir. 2004) (“Because [the petitioner’s] testimony plausibly could be viewed as

incredible, and certainly could be viewed as inconsistent or incoherent, a fact finder

reasonably could find that [the petitioner’s] testimony, absent corroboration, was

insufficient to meet his burden of proof.”)          Because the IJ’s adverse credibility

determination, which was adopted by the BIA, is entitled to deference, the petitioner's oral

testimony does not suffice, and the IJ was therefore entitled to consider the lack of

supporting evidence.

       Petitioner utterly failed to rehabilitate his claims with corroboration. He did not offer

any medical documentation of his alleged physical injuries or of Min Huei’s abortion. Nor

did he offer evidence of his traditional marriage, the existence of his girlfriend, or the

imposition of the 5,000 RMB fine and mandatory special program attendance. Moreover,

he failed to offer even background information indicating that coercive population control

measures were implemented in Fuzhou City. In light of the petitioner’s questionable

testimony, the IJ appropriately found his failure to submit any corroborating evidence to

greatly undermine his credibility. See Zhao v. Holder, 569 F.3d 238, 249 (6th Cir. 2009)

(holding that the IJ properly focused on an incredible petitioner’s failure to provide

corroborating evidence).

       Because the petitioner’s claims for withholding of removal and for protection under

the CAT rest on the same factual basis as his asylum claim, the IJ’s adverse credibility
Dong v. Holder
No. 08-3469

finding renders the petitioner ineligible for asylum, withholding of removal, and protection

under the CAT. See Kaba, 546 F.3d at 751.

                                      III. Conclusion

       For these reasons, we DENY the petition for review.
