                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 06-1031



YAN DAN LI,

                                                        Petitioner,

           versus


ALBERTO R. GONZALES, Attorney General,

                                                        Respondent.



On Petition for Review of an Order of the Board of Immigration
Appeals. (A77-977-373)


Argued:   January 31, 2007                 Decided:   March 15, 2007


Before WILKINS, Chief Judge, and WILLIAMS and DUNCAN, Circuit
Judges.


Petition for review granted; vacated in part and remanded by
unpublished per curiam opinion.


ARGUED: S. Vanessa von Struensee, Arlington, Virginia, for
Petitioner.   James Arthur Hunolt, UNITED STATES DEPARTMENT OF
JUSTICE, Office of Immigration Litigation, Washington, D.C., for
Respondent. ON BRIEF: Peter D. Keisler, Assistant Attorney General,
Civil Division, Sara Ann Ketchum, Tax Division, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     Yan Dan Li, a native of the People’s Republic of China (PRC),

petitions for review of the order of the Board of Immigration

Appeals (BIA) denying her applications for asylum under 8 U.S.C.A.

§ 1158(b) (West 2005 & Supp. 2006), withholding of removal under 8

U.S.C.A. § 1231(b)(3) (West 2005 & Supp. 2006), and protection under

the United Nations Convention Against Torture (CAT).   Li contends,

inter alia, that the immigration judge (IJ) denied her asylum and

withholding of removal applications based on an improper application

of the “corroboration rule,” under which an asylum applicant may be

required to present evidence corroborating her testimony even when

that testimony is deemed credible.    Because the IJ, in assessing

Li’s applications for asylum and withholding of removal, did not

explain why corroboration of Li’s testimony was required, we remand

to allow the IJ to provide such an explanation.   We also hold that

the IJ’s denial of Li’s application for protection under the CAT was

supported by substantial evidence because Li cannot show that it is

more likely than not that she would be tortured upon return to the

PRC. Accordingly, we grant Li’s petition for review, vacate in part

the BIA’s order, and remand.



                                I.

     Li was born on December 20, 1977, in Fuzhou City, Fujian

province, China.   Before leaving to come to the United States, she


                                 2
lived with her parents and worked at a fashion boutique in their

village.   Li has two brothers who continue to live with her parents

and a married sister who also lives in the Fuzhou City area.

     Li left China in the summer of 2001 after her family paid a

“snakehead”1 to secure her passage from China to the United States,

and she arrived in the United States a few months later.   Within a

year of her arrival, Li married Tak Yan Cheng, a United States

citizen, on June 3, 2002.2

     On October 5, 2001, the Immigration and Naturalization Service

(now reorganized within the Department of Homeland Security) issued



     1
      A “snakehead” is a smuggler who transports Chinese immigrants
from China to the United States and other countries. See Zheng v.
Ashcroft, 332 F.3d 1186, 1189 (9th Cir. 2003).
     2
      In January 2006, Li filed an application for adjustment of
status based on her marriage to a United States citizen. Under 8
C.F.R. § 1245.1(c)(8), an arriving alien who is in removal
proceedings is barred from adjusting status.           8 C.F.R. §
1245.1(c)(8) (2006). In a letter submitted after briefing pursuant
to Federal Rule of Appellate Procedure 28(j), Li notified us that
four courts of appeals have struck down 8 C.F.R. § 1245.1(c)(8) and
that an interim rule has been promulgated that will do away with
the absolute bar on an arriving alien’s ability to adjust status
while in removal proceedings. Li filed a motion to reconsider with
the BIA based on this argument, but the BIA denied the motion. Li,
however, did not file a petition for review of the BIA’s denial of
her motion to reconsider and did not challenge the validity of 8
C.F.R. § 1245.1(c)(8) in her opening brief. Because Li did not
present this issue in her opening brief, and because the argument
about the regulation’s validity was available to her at the time
she filed her brief, we decline to pass on the validity of the
regulation in this appeal. See United States v. Leeson, 453 F.3d
631, 638 n.4 (4th Cir. 2006)(“[C]onsidering an argument advanced
for the first time in a Rule 28(j) filing is not only unfair to the
appellee, it also creates the risk of an improvident or ill-advised
opinion being issued on an unbriefed issue.”).

                                 3
Li a Notice to Appear charging her with being subject to removal

pursuant to 8 U.S.C.A. § 1182(a)(7)(A)(i)(I) (West 2005 & Supp.

2006).      Li conceded removability and sought asylum, withholding of

removal, and protection under the CAT.

       According to her testimony at her removal hearing, Li left

China because she faced arrest for her refusal to marry the “village

head,” a local government official.         Li testified that on January

6, 2001, the village head came to her parents’ home and proposed to

her.       Knowing that Li had no interest in marrying a man nearly

twenty years her senior, Li’s parents immediately rejected the

village head’s proposal on her behalf.            In response, the village

head arrested Li’s mother and jailed her for two to three weeks for

practicing     Falun   Gong,3   destroyed   her   parents’   furniture,   and

threatened to arrest Li.        Li testified that she had heard of other

girls being forced to marry local government officials under threat

of incarceration or destruction of family property, although she

could not recount any details of these incidents.            As a result of



       3
      “Falun Gong is an international movement, though primarily
Chinese, that is often referred to as a ‘religion’ (or, by its
critics, as a ‘cult’), though it is not a religion in the Western
sense. Like other Asian ‘religions,’ such as Buddhism and
Confucianism- on both of which Falun Gong draws- there is no deity.
The emphasis is on spiritual self-perfection through prescribed
physical exercises; in this respect the movement has affinities
with traditional Chinese medicine.” Iao v. Gonzales, 400 F.3d 530,
532 (7th Cir. 2005). The Chinese government has made the practice
of Falung Gong unlawful. “As Falun Gong is neither theistic nor,
so far as appears, political, the ferocious antipathy to it by the
Chinese government - that government’s determination to eradicate
it root and branch - is mysterious, but undeniable.” Id.
                                 4
these acts of retaliation, Li testified that she briefly went into

hiding in a classmate’s home in a neighboring village.        When asked

what she thought would happen to her upon return to China, Li

responded, “I . . . will be sent into the jail . . . . because [the

village head will] accuse me that I was a member of Falun Gong and

I left China illegally.”     (S.A. at 77.)4

     In response to Li’s testimony, the IJ questioned her about her

failure     to   provide   evidence     corroborating   her   testimony.

Specifically, the IJ focused on Li’s failure to produce any letters

from her family members and classmate to substantiate her claims of

retaliation against her family.        When the IJ asked Li why she had

not come with letters from her family in hand, Li responded that she

did not know that such letters were needed, but that she could ask

for letters if necessary.

         In an oral decision, the IJ denied Li’s asylum application.

While the IJ made passing references that implied doubt about Li’s

credibility, the IJ did not make an explicit finding that Li’s

testimony was not credible.           Instead, in denying Li’s asylum

application, the IJ focused on her failure to provide corroborating

evidence in the form of letters from her family and friends.

Concerning Li’s claim of fear of future persecution, the IJ stated

that there was a “singular lack of corroborating documentation and

evidence in this case” (J.A. at 39), noting that “[Li] could’ve


     4
      “S.A.” refers to the Supplemental Appendix. “J.A.” refers to
the Joint Appendix.
                                 5
asked for some type of corroborating documentation by way of

affidavits   or   even    letters”   that      “very      curiously”    were   not

forthcoming from her family, (J.A. at 40). The IJ repeatedly stated

that Li had produced “no evidence” that corroborated her testimony

and found that her claim of fear of future persecution was undercut

by the fact that her family remained in the same town where the

village head resides, apparently unharmed.             The IJ rejected as “not

satisfactory”     Li’s    explanation       that    she   did   not    know    such

corroboration     was    needed.     (J.A.     at    40.)       Because   of   her

determination that Li could not demonstrate the threshold well-

founded fear of persecution necessary for asylum, the IJ did not

reach the question of Li’s membership in a particular social group.

The IJ then concluded that Li was necessarily ineligible for

withholding of removal given her ineligibility for asylum and held

that Li was not entitled to protection under the CAT because she had

not produced any evidence showing that it was more likely than not

that she would be tortured upon return to the PRC. Li appealed, and

the BIA summarily affirmed and adopted the IJ’s decision in a

written opinion, briefly discussing the bases for the IJ’s decision.

On January 6, 2006, Li filed a petition for our review of the BIA’s

final order of removal. We have jurisdiction pursuant to 8 U.S.C.A.

§ 1252 (West 2005 & Supp. 2006).




                                        6
                                        II.

                                        A.

       An alien seeking asylum must demonstrate that she is unable or

unwilling to return to her country of origin because of persecution,

or a well-founded fear of persecution, on account of her race,

religion, nationality, membership in a particular social group, or

political opinion.         8 U.S.C.A. § 1101(a) (West 2005 & Supp. 2006).

An alien seeking withholding of removal bears a higher burden of

proof: she must demonstrate that “it is more likely than not” that

she would be persecuted if removed to the proposed country of

removal.       INS v. Cardoza-Fonseca, 480 U.S. 421, 430 (1987).

       The BIA’s decision that an alien is not eligible for admission

to the United States is conclusive unless manifestly contrary to

law.       8    U.S.C.A.    §     1252(b)(4)(C).     We    review   the    BIA’s

administrative findings of fact under the substantial evidence rule:

we must treat them as conclusive “unless any reasonable adjudicator

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

1252(b)(4)(B);       INS     v.    Elias-Zacarias,   502     U.S.   478,    481

(1992)(stating that an appellate court must uphold the BIA’s factual

findings if they are “supported by reasonable, substantial, and

probative evidence on the record considered as a whole” (internal

quotation marks omitted)).            Of course, we review de novo legal

questions determined by the BIA, Blanco de Belbruno v. Ashcroft, 362

F.3d 272, 278 (4th Cir. 2004), affording appropriate deference to

the BIA’s interpretation of the Immigration and Naturalization Act
                                         7
and any attendant regulations, Christensen v. Harris County, 529

U.S. 576, 586-88 (2000)(stating that Chevron deference should be

afforded to an agency’s interpretation of an ambiguous statute and

Auer deference to an agency’s interpretation of its own regulation).

Because the BIA adopted the IJ’s decision and briefly discussed some

of the bases for that decision, we review both the IJ’s decision and

the additional reasoning supplied by the BIA in its written order.

See Gandarillas-Zambrana v. BIA, 44 F.3d 1251, 1255 (4th Cir. 1995);

Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004)(“[W]hen 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.”).



                                B.

      While Li makes multiple challenges to the IJ’s denial of her

applications for asylum and withholding of removal, Li’s most

compelling argument is that the IJ denied her a fair and meaningful

hearing by misapplying the so-called “corroboration rule” to deny

her asylum application for lack of corroborating evidence, without

first making an explicit credibility finding about her testimony and

without adequately explaining why corroboration was required.   The

corroboration rule is based on the BIA’s interpretation of 8 C.F.R.

§ 208.13(a) (2006), which provides, in pertinent part, that for

purposes of establishing eligibility for asylum, “[t]he testimony

of the applicant, if credible, may be sufficient to sustain [her]
                                 8
burden of proof without corroboration.”     Id.   “Although on its face

this regulation establishes a condition under which corroboration

is not necessary,” Gontcharova v. Ashcroft, 384 F.3d 873, 876 (7th

Cir. 2004), the BIA has interpreted the phrase “may be sufficient”

to mean that an applicant’s credible testimony will not always be

sufficient to meet her burden of proof, see In re S-M-J, 21 I & N.

Dec. 722, 725 (BIA 1997)(stating that “where it is reasonable to

expect corroborating evidence for certain alleged facts pertaining

to the specifics of an applicant’s claim, such evidence should be

provided”).

     The corroboration rule is relevant only if the applicant’s

testimony is otherwise credible.       Li contends that because the IJ

did not make an express adverse credibility finding about her

testimony, it must be accepted as credible.       We agree and conclude

that there is a presumption of credibility when an IJ fails to make

an explicit adverse credibility finding.5         See, e.g., Kalubi v.

Ashcroft, 364 F.3d 1134, 1137 (9th Cir. 2004)(“Testimony must be

accepted as true in the absence of an explicit adverse credibility

finding.”); Canales-Vargas v. Gonzales, 441 F.3d 739, 741 n.1 (9th

Cir. 2006)(same).   This presumption is in harmony with Congress’s


     5
      In an unpublished opinion, Tchaya v. Ashcroft, 106 F. App’x
174, 179 (4th Cir. 2004)(unpublished), we previously rejected a
presumption of credibility when an IJ does not make an explicit
adverse credibility finding.   See id. (rejecting the contention
that a presumption of credibility exists when no adverse
credibility determination is made). Because unpublished opinions
are not binding precedent within this circuit, see Local Rule
36(c), we are not bound to follow the Tchaya court’s reasoning.
                                   9
amendments in the REAL ID Act of 2005, Pub. L. No. 109-13, §

101(a)(3)(B)(iii), 119 Stat. 302, 303 (2005).          While not applicable

to Li’s case, the Act amended 8 U.S.C.A. § 1158(b) so that the

statute now provides that “if no adverse credibility determination

is explicitly made, the applicant or witness shall have a rebuttable

presumption   of    credibility      on     appeal.”         8    U.S.C.A.    §

1158(b)(1)(B)(iii).

      Some of the IJ’s statements at Li’s removal hearing strongly

implied doubt about Li’s credibility. (See, e.g., J.A. at 40 (“[Li]

could’ve asked . . . for some type of corroborating documentation

. . . .    But, very curiously, there has been absolutely nothing

forthcoming from the family.”).)          Indeed, the IJ’s focus on Li’s

failure to provide corroborating evidence suggests that the IJ

questioned the veracity of Li’s testimony about the village head’s

treatment of her family subsequent to his marriage proposal to Li.

Moreover, the IJ assumed that Li’s testimony did not count as

“evidence” of her plight, as she repeatedly stated that Li had

presented “no evidence” that she or her family has suffered any

maltreatment at the hands       of the village head.              While these

statements easily lead to the inference that the IJ was skeptical

of Li’s testimony, they do not amount to an explicit adverse

credibility   finding.    For   an   IJ’s      credibility   finding    to   be

explicit, the IJ must state in no uncertain terms that he finds that

the   applicant’s   testimony   is   or   is    not   credible;   “a   passing

reference implying doubt about an applicant’s credibility” simply

                                     10
will not do. Diallo v. Gonzales, 439 F.3d 764, 766 (7th Cir. 2006);

see   also   Nakibuka   v.   Gonzales,    421   F.3d   473,   479    (7th    Cir.

2005)(holding that an IJ failed to make an explicit credibility

finding even though he remarked that the applicant’s testimony was

“vague and confusing” as well as “exaggerated”). Because the IJ did

not make an explicit adverse credibility finding, we presume Li’s

testimony to be credible and turn to the application                    of    the

corroboration rule.



                                     C.

      Although the BIA’s interpretation of 8 C.F.R. § 208.13(a) --

i.e., that an applicant’s testimony alone will not always be

sufficient to meet her burden of proof -- is worthy of deference,

see Auer v. Robbins, 519 U.S. 452, 461 (1997)(stating that courts

must defer to an agency’s interpretation of its own regulation,

treating     that   interpretation   as    “controlling       unless   plainly

erroneous or inconsistent with the regulation.” (internal quotation

marks omitted)), that interpretation does not necessarily spell

victory for the Government in this case.          An IJ must still explain

why corroboration is required in a given case, lest the regulation’s

pronouncement that an applicant’s testimony alone may be sufficient

to meet her burden of proof be rendered meaningless.                It is clear

in Li’s case that the IJ did not explain why Li should have provided

corroboration of her testimony.



                                     11
      While the IJ asked Li several times if she had asked her family

members and friends for letters to substantiate her testimony, the

IJ never explained why such letters were necessary for Li to meet

her   burden   of    proof.     Instead,      in   ruling    on   whether   Li   had

established a well-founded fear of future persecution, the IJ simply

stated    that      “there    was    a   singular     lack    of    corroborating

documentation and evidence in this case.” (J.A. at 39.) While this

statement may well reveal that the IJ simply did not believe Li’s

testimony, it does not amount to an explanation of why corroboration

was required in her case.           In fact, because the IJ failed to make

an explicit adverse credibility finding, it is unclear from the IJ’s

decision whether the IJ required corroboration because she did not

believe Li or because the IJ determined that such corroboration was

necessary for Li to meet her burden of proof despite her testimony

being credible.      We therefore remand this matter to the BIA because

the IJ denied Li’s asylum application for failure to provide

corroborating evidence without explaining why such corroboration was

needed, thus making it difficult, nigh impossible, for us to conduct

our already-circumscribed review              of the IJ’s decision.6        Because

the IJ denied Li withholding of removal based on her earlier

analysis of Li’s asylum application, we remand with respect to Li’s

application for withholding of removal as well.



      6
      On remand, of course, the IJ also retains the discretion to
make an explicit credibility determination in the first instance,
notwithstanding our invocation of a presumption of credibility.

                                         12
                                III.

     Li also contends that the IJ erred in denying her application

for protection under the CAT.   CAT claims are analytically distinct

from asylum and withholding claims and are judged under a different

standard. Camara v. Ashcroft, 378 F.3d 361, 371-72 (4th Cir. 2004).

An applicant for protection under the CAT bears the burden of

establishing “that it is more likely than not that . . . she would

be tortured if removed to the proposed country of removal.”         8

C.F.R. § 1208.16(c)(2) (2006); Camara, 378 F.3d at 371.

     We conclude that substantial evidence supports the IJ’s denial

of Li’s application for protection under the CAT.         Li did not

produce any evidence before the IJ that suggests that she would be

tortured upon removal to the PRC.      While Li’s mother was arrested

and jailed for her practice of Falun Gong, there is no indication

that her mother was tortured while she was detained.     We therefore

find no error in the IJ’s denial of Li’s CAT application.



                                IV.

     Finally, Li invites us to hold that she is a member of a

“particular social group” as that phrase is used in 8 U.S.C.A. §

1101(a)(42), namely, that her statutorily cognizable group is

comprised of “young Chinese women who oppose forced, coerced or

involuntary marriages.”    (Appellant’s Br. at 16-17.)       We must

decline this invitation.


                                 13
     Because the IJ determined that Li had not demonstrated a well-

founded fear of persecution, she never reached the question of Li’s

membership in a particular social group.             Under the so-called

“ordinary remand” rule, “[a] court of appeals is not generally

empowered to conduct a de novo inquiry into the matter being

reviewed and to reach its own conclusions based on such an inquiry.”

Gonzales   v.   Thomas,   126   S.    Ct.    1613,   1614-15   (2006)(per

curiam)(internal quotation marks omitted). Instead, the appropriate

course, “except in rare circumstances, is to remand to the [BIA] for

additional investigation or explanation.”       INS v. Ventura, 537 U.S.

12, 16 (2002)(per curiam)(internal quotation marks omitted).         This

is not the “rare” case spoken of in Ventura.



                                     V.

     For the foregoing reasons, we grant Li’s petition for review

of the BIA’s final order of removal.        We vacate in part the BIA’s

order because the IJ misapplied the corroboration rule with respect

to Li’s applications for asylum and withholding of removal.        On the

other hand, we affirm that portion of the BIA’s order relating to

Li’s application for relief under the CAT. We remand to the BIA for

such further proceedings as may be appropriate.

                                            PETITION FOR REVIEW GRANTED;
                                            VACATED IN PART AND REMANDED




                                     14
