                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 12-2732
                                     ___________

                                     DE WEN LUI,
                                           Petitioner

                                           v.

                ATTORNEY GENERAL OF THE UNITED STATES,
                                       Respondent
                   ____________________________________

                       On Petition for Review of an Order of the
                           Board of Immigration Appeals
                            (Agency No. A098-715-331)
                     Immigration Judge: Honorable Miriam Mills
                     ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 December 26, 2012

                Before: FISHER, GARTH and ROTH, Circuit Judges.

                           (Opinion filed: February 1, 2013)
                                    ___________

                                      OPINION
                                     ___________

PER CURIAM

      Lui, a native and citizen of China, petitions for review of a decision by the Board

of Immigration Appeals (“BIA”) which dismissed his appeal of an immigration judge’s
(“IJ”) decision denying his applications for asylum, withholding of removal, and

protection under the Convention Against Torture. 1

                                             I.

       Lui was served with a Notice to Appear in December 2004, two days after his

arrival in the United States. He was charged with removability pursuant to 8 U.S.C.

§ 1182(a)(6)(A)(i) as an alien present in the United States without being admitted or

paroled. Lui conceded removability and sought asylum, withholding of removal, and

CAT protection with the immigration court.

       Lui claimed that because his wife was under 24 years old at the time they were

married, they were unable to obtain a permit to have a child. However, his wife became

pregnant shortly after their request for a permit was denied and, two days after he learned

of the pregnancy, a family planning official ordered his wife to report for a physical

examination. In fear of the pregnancy’s discovery, he and his wife went into hiding. Lui

claimed that family planning officials thereafter came to his house, harassed his family

members, and destroyed his belongings, and, as a result of his wife’s pregnancy, Lui was

fined and his father was arrested. His wife eventually turned herself in and was forced to

have an abortion. Lui claimed that he still owes much of the fine levied against him, and




       1
        The Board of Immigration Appeals affirmed the decision of the Immigration
Judge denying asylum, withholding of removal, and CAT protection to the petitioner as
he had not carried his burden of establishing eligibility for any relief.


                                             2
would be beaten, jailed, and tortured upon his return to China as a result. Moreover, he

contends that he and his wife may face sterilization by the Chinese government.

       After a hearing, the IJ determined that Lui was not credible and failed to

sufficiently corroborate his claims. The IJ therefore denied his applications for relief and

ordered him removed to China. On appeal, the BIA determined that the IJ’s adverse

credibility finding was not clearly erroneous and agreed that Lui had provided

insufficient corroboration for his claim. The BIA therefore dismissed his appeal, and Lui

timely petitioned this Court for review.

                                             II.

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

§ 1252(a)(1). See Abdulai v. Ashcroft, 239 F.3d 542, 548 (3d Cir. 2001). We review

factual findings, including any credibility determinations, under a substantial evidence

standard. See Cao v. Att’y Gen., 407 F.3d 146, 152 (3d Cir. 2005). Under that standard,

we must uphold the BIA’s decision unless the evidence not only supports a contrary

conclusion, but compels it. See Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir.

2001). The burden of establishing eligibility for asylum, withholding of removal, and




                                             3
relief under the CAT is on the applicant. Toure v. Att’y Gen., 443 F.3d 310, 317 (3d Cir.

2006) (citing 8 C.F.R. § 208.13(a)). 2

                                            III.

       Lui presently argues that the IJ erred in finding his testimony improbable and

incredible. Among other things, the IJ found that Lui’s contention that his then-twenty-

three-year-old wife was underage for a birth permit was inconsistent with the family

planning regulations he submitted as evidence. Although Lui argues that the birth of his

child did not qualify as a “late childbearing” under those regulations, see A.R. 424, the

only regulations relevant to late childbearing provide that “citizens who practice late

marriage and late childbirth shall be awarded with extended leaves for marriage and

childbirth or other benefits.” A.R. 418. Indeed, nothing in the record – save Lui’s

testimony – indicates that only “late childbearing” is permissible or that he and his wife

were otherwise ineligible to have a child. Although the regulations do forbid “early

childbirth,” the definition of that term makes no mention of a woman's age, and the

provision does not apply to the circumstances Lui described because he and his wife were

married and having their first child. A.R. 426.


       2
         Because Lui filed his asylum application after the enactment of the REAL ID
Act, the inconsistencies, inaccuracies, or falsehoods upon which the adverse credibility
finding is based need not go to the heart of his claim. See Lin v. Att’y Gen., 543 F.3d
114, 119 n.5 (3d Cir. 2008). Rather, the REAL ID Act permits credibility determinations
to be based on observations of Lui’s demeanor, the plausibility of his story, and the
consistency of his statements. See 8 U.S.C. § 1158(b)(1)(B)(iii); Gabuniya v. Att’y Gen.,
463 F.3d 316, 322 n.7 (3d Cir. 2006).


                                             4
        In fact, the regulations Lui submitted as evidence are inconsistent with the

requirements he claims led to a forced abortion. They provide generally that “[a]fter

approval is granted for a couple to have an additional child, the birth must occur at least

four years after the previous child’s birth, and the wife must be at least 25 years of age.”

A.R. 426. The regulations therefore appear to contemplate that children will be born to

women younger than twenty-four: if, as Lui contends, a woman must be twenty-four

years old to obtain permission to have her first child, a woman younger than twenty-eight

years old could not, as a matter of course, have a second child four years after her first

and comply with the rule. Lui offers no explanation of this inconsistency.

        Accordingly, we are not compelled to disagree with the determination that Lui’s

testimony regarding his wife’s allegedly forced abortion was not credible. The record

likewise supports the determination that Lui failed to demonstrate that he will be

mistreated upon return to China. We therefore find no error in the BIA’s conclusion that

he is not entitled to relief. 3

                                             IV.

        For the foregoing reasons, we will deny the petition for review.



        3
        Because Lui is not entitled to relief, we need not address Lui’s challenges to
other aspects of the BIA’s adverse credibility or corroboration analysis. Any errors in
those aspects of the BIA’s decision would have been harmless and would not justify
granting the petition for review. See Li Hua Yuan v. Att’y Gen., 642 F.3d 420, 427 (3d
Cir. 2011) (“[W]e will view an error as harmless and not necessitating a remand to the
BIA when it is highly probable that the error did not affect the outcome of the case.”).


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