          United States Court of Appeals
                      For the First Circuit

No. 12-1464

                          WEN FENG LIU,

                           Petitioner,

                                v.

              ERIC H. HOLDER, JR., Attorney General,

                           Respondent.



              PETITION FOR REVIEW OF AN ORDER OF THE
                   BOARD OF IMMIGRATION APPEALS



                              Before

                       Lynch, Chief Judge,
               Lipez and Thompson, Circuit Judges.



     Farah Loftus on brief for petitioner.
     Elizabeth R. Chapman, Trial Attorney, Office of Immigration
Litigation, Civil Division, U.S. Department of Justice, Stuart F.
Delery, Acting Assistant Attorney General, and Shelley R. Goad,
Assistant Director, on brief for respondent.



                          April 22, 2013
           LYNCH, Chief Judge. On November 10, 2009, an Immigration

Judge found petitioner Wen Feng Liu removable under the Immigration

and Nationality Act and denied Liu's applications for asylum,

withholding of removal, and protection under the Convention Against

Torture.   The Board of Immigration Appeals dismissed Liu's appeal

on March 26, 2012, and Liu filed a timely petition for review.

Because the decision below was supported by substantial evidence,

we deny the petition and affirm the BIA.

                                 I.

           On December 27, 2006, Liu, a native-born citizen of the

People's Republic of China, entered the United States without

admission or parole.   His wife and child remained in China.   Just

over six months later, on July 6, 2007, Liu filed an affirmative

application for asylum and withholding of removal.

           Liu's application asserted that in 2003, he and his wife

conceived a second child in violation of China's one-child policy

and that as a result his wife was subjected to a forced abortion.

A section of the Immigration and Nationality Act provides that

those "forced to abort a pregnancy" are presumptively entitled to

asylum.    8 U.S.C. § 1101(a)(42)(B) (2006).   At the time of Liu's

application, the Board of Immigration Appeals (BIA) had interpreted

this section as extending the presumption to the husband of a woman

subject to a forced abortion.   See In Re S-L-L, 24 I. & N. Dec. 1,

7 (BIA 2006) ("[Forced abortion of a] prospective child . . . is


                                -2-
explicitly directed against both husband and wife for violation of

the     Government-imposed         family     planning      law       and    amounts     to

persecution of both parties to the marriage.").

               On October 11, 2007, following an initial interview and

referral from an asylum officer, Liu appeared before an Immigration

Judge    (IJ)     and      conceded    removability       but     requested       asylum,

withholding of removal, and protection under the Convention Against

Torture (CAT).          Various procedural matters, including a change of

venue from New York to Boston, then delayed adjudication of Liu's

petition on the merits for more than two years.                       On May 15, 2008,

while the petition remained pending, the Attorney General issued an

opinion        overruling      the     BIA's      interpretation            of    section

1101(a)(42)(B) as presumptively entitling a husband to asylum on

the basis of his wife's forced abortion. See Matter of J–S–, 24 I.

& N. Dec. 520, 536 (A.G. 2008); see also Xian Tong Dong v. Holder,

696 F.3d 121, 125 (1st Cir. 2012) (Attorney General's opinion in

Matter of J-S- is a "reasonable interpretation" of statute).

               The     Attorney       General     acknowledged          that      section

1101(a)(42)(B)         "does   not    explicitly    exclude       spouses        from    its

purview."       Matter of J–S–, 24 I. & N. Dec. at 530.                      However, he

concluded that applicants whose spouses have been forced to undergo

an abortion or involuntary sterilization procedure "must present

proof,    of    which      their   spouse's     treatment       may    be    a   part,    of

persecution          for    refusing     to     undergo     forced          abortion     or


                                          -3-
sterilization procedures or for engaging in 'other resistance' to

a coercive population control program."    Id. at 535.

          Following   the   Attorney   General's   decision,    which

petitioner does not challenge, Liu modified his asylum application.

First, on October 21, 2009, he added an additional claim; he

asserted that since his initial submission and meeting with the

asylum officer, he and his wife had become adherents of Falun Gong,

the spiritual discipline that is the target of a suppression

campaign by the Chinese government.    Liu claimed that his wife had

been arrested in China for practicing Falun Gong and that he feared

future persecution based on his own practice.   Second, on November

9, 2009, Liu amended his original claim; he asserted for the first

time that in 2003, when his wife was pregnant with their second

child, Chinese officials came to his home and hit him, and that he

was forced into hiding.

          On November 10, 2009, Liu received a merits hearing

before a Boston IJ and testified regarding the two grounds on which

he sought asylum, withholding of removal, and CAT protection.       In

describing his claim based on his wife's abortion, he repeated the

assertions in his original and amended application.      Liu expounded

somewhat on his assertion that he went into hiding; he claimed

government officials abused him during this time, although he

repeatedly failed to specify when or how, and he explained that

although he was in hiding, he continued to work.   In describing his


                                -4-
claim based on his adherence to Falun Gong, Liu testified that he

began practicing at his wife's suggestion in July 2008 and that his

practice included weekly public exercises in Boston's Chinatown

Park.    He also testified that Chinese officials arrested his wife

for practicing Falun Gong and held her from April to September

2009, during which time they deprived her of adequate food and

physically abused her.     In support of these claims, he submitted

various letters and affidavits.

            After   considering   Liu's   testimony   and   supporting

evidence, the IJ denied asylum, withholding of removal, and CAT

protection.    The IJ explained his reasoning in an oral decision,

addressing first Liu's claim based on his wife's forced abortion.

The IJ focused on the change of law announced in Matter of J–S– and

noted that under the Attorney General's controlling interpretation

of section 1101(a)(42)(B), Liu's claim as initially presented did

not entitle him to asylum.    Liu's later assertions that officials

hit him and that he was forced into hiding lacked credibility, the

IJ found.     He concluded that Liu added these allegations only to

establish that he had engaged in "other resistance" to the forced

abortion program, as Matter of J–S– required.     24 I. & N. Dec. at

535.    The IJ also found Liu's claim that he continued to work while

in hiding "internally inconsistent."       Finally, the IJ concluded

that even if Liu were credible, his claimed abuse relating to his

wife's forced abortion did not entitle him to asylum.


                                  -5-
            As for Liu's claimed practice of Falun Gong, the IJ

expressed concern that Liu was trying "to end-run an asylum claim

after there has been a change in the law having to do with his

original   claim."     The   IJ    concluded    that   Liu's   "non-credible

testimony" regarding his "resistance to family coercive population

control laws" was "convinc[ing]" evidence that he "is not a sincere

believer in Falun Gong but, rather, has created that also in order

to qualify for political asylum on a ground not contemplated by him

when he fled China and came to the United States."                    The IJ

concluded that although Liu did practice Falun Gong, his lack of

sincere belief meant that he was not entitled to asylum.

            Finally, because Liu failed to satisfy the requirements

for asylum on the basis of either his wife's forced abortion or his

own practice of Falun Gong, the IJ concluded that he also failed to

satisfy    the   requirements     for    withholding   of   removal   or   CAT

protection.

            Liu filed a timely appeal, which the BIA dismissed on

March 26, 2012. The BIA's order closely tracked the IJ's decision,

explaining briefly why the IJ's factual findings were not clearly

erroneous and why his legal conclusions were correct.                 The BIA

noted in addition that Liu had not submitted medical records

confirming his wife's abortion and had admitted that he could

practice Falun Gong privately in China.           On April 19, 2012, Liu

filed a timely petition for review by this court.


                                        -6-
                                     II.

            When, as in this case, the BIA adopts the IJ's order but

also discusses the bases for that order, we review both opinions.

Cuko v. Mukasey, 522 F.3d 32, 37 (1st Cir. 2008).          On questions of

law, our review is de novo, "with appropriate [administrative-law]

deference    to    the   agency's   interpretation    of   the   underlying

statute."     Vásquez v. Holder, 635 F.3d 563, 565 (1st Cir. 2011)

(quoting Stroni v. Gonzales, 454 F.3d 82, 87 (1st Cir. 2006))

(internal quotation mark omitted).         On questions of fact, however,

we apply the substantial evidence standard.           Lobo v. Holder, 684

F.3d 11, 16 (1st Cir. 2012).            In light of the IJ's superior

"vantage point from which to assess the witnesses' testimonies and

demeanors,"       this   standard    "accord[s]      significant   respect

to . . . witness credibility determinations" made by the IJ and

adopted by the BIA.      Cuko, 522 F.3d at 37.    As required by statute,

we "will not reverse a determination that a witness was not

credible unless 'any reasonable adjudicator would be compelled to

conclude to the contrary.'"         Stroni v. Gonzales, 454 F.3d 82, 87

(1st Cir. 2006) (quoting 8 U.S.C. § 1252(b)(4)(B)).

            Here, the issues are factual rather than legal.            The

statutory and regulatory schemes governing Liu's claims are clear.

To be eligible for asylum, an applicant must be a "refugee," 8

U.S.C. § 1158(b)(1)(A), who is unwilling or unable to return to his

or her home country due to "persecution or a well-founded fear of


                                     -7-
persecution on account of race, religion, nationality, membership

in    a   particular       social    group,        or     political        opinion,"     id.

§ 1101(a)(42)(A).          Withholding of removal sets the bar higher; an

applicant must demonstrate that in the proposed country of removal,

it is more likely than not that his or her "life or freedom would

be threatened" on account of the statutorily protected asylum

grounds. Id. § 1231(b)(3)(A); 8 C.F.R. § 1208.16(b). Finally, CAT

protection     requires      an    applicant       to     demonstrate       that    in   the

proposed country of removal, "it is more likely than not that he or

she   would    be    tortured"      by   or    with       the    acquiescence       of   the

government, although not necessarily on account of the statutorily

protected asylum grounds.            8 C.F.R. § 1208.16(c)(2).

              The   burden    of    establishing          eligibility        for    asylum,

withholding of removal, or CAT protection is on the applicant.

Simo v. Gonzales, 445 F.3d 7, 11 (1st Cir. 2006).                                  Credible

testimony on its own may support a claim, but when an applicant

presents "evidence that the factfinder supportably characterizes as

incredible,"        such    evidence        "may     be    either         disregarded     or

discounted."        Pan v. Gonzales, 489 F.3d 80, 86 (1st Cir. 2007).

              Liu   does    not     argue     that      the     IJ   or    BIA   erred    in

interpreting or applying the governing law.                     Rather, he challenges

the BIA's acceptance of the IJ's adverse credibility determinations

and its resulting conclusion that he is not entitled to asylum,

withholding of removal, or CAT protection.                      Because Liu filed his


                                            -8-
initial application for asylum after May 11, 2005, his application

is governed by the REAL ID Act of 2005, Pub. L. No. 109–13,

§ 101(h)(2), 119 Stat. 302, 305, which sets out a "totality of the

circumstances" rule for credibility determinations, Seng v. Holder,

584 F.3d 13, 18 n.2 (1st Cir. 2009).     The rule permits the trier of

fact to   consider    "all relevant    factors"   and   make   an   adverse

credibility   determination    "without     regard      to     whether   an

inconsistency, inaccuracy, or falsehood goes to the heart of the

applicant's claim."    8 U.S.C. § 1158(b)(1)(B)(iii).

          We begin our review with Liu's asylum claim related to

his wife's forced abortion.   Liu disputes that the IJ had any basis

for finding his statements incredible.        He argues that "often,

petitioners give more explanations and details about their reasons

for asylum in court than in the application for asylum."                 He

concedes that he did not initially claim that officials hit him and

that he was forced into hiding, but maintains "that fact alone

should not have been the basis to find [him] not to be credible."

          This argument misstates the IJ's conclusion.          The IJ did

not determine that Liu lacked credibility simply because he added

details to his asylum application after first filing it.            Rather,

as explained above, the IJ determined that Liu lacked credibility

primarily because Liu added these details only when confronted with

the change in law following Matter of J–S–.        The IJ further noted

that one of the added details rendered Liu's story internally


                                 -9-
inconsistent; Liu never explained how he retained his regular job

after supposedly going into hiding.

          The IJ's conclusions have substantial force.         To the

extent that "determining credibility is a matter of sound judgment

and common sense . . . , when an alien's earlier statements omit

any mention of a particularly significant event or datum, an IJ is

justified -- at least in the absence of a compelling explanation --

in doubting the petitioner's veracity." Muñoz-Monsalve v. Mukasey,

551 F.3d 1, 8 (1st Cir. 2008).   Given "that a witness's demeanor is

often a critical factor in determining [his] truthfulness," Laurent

v. Ashcroft, 359 F.3d 59, 64 (1st Cir. 2004), the IJ who actually

heard Liu's testimony could rely on considerably more than sound

judgment and common sense in making the credibility determination

that he did.

          Accordingly,   we   conclude   that   substantial   evidence

supported the IJ's finding, adopted by the BIA, that Liu lacked

credibility in asserting that officials hit him and that he went

into hiding following his wife's forced abortion. His asylum claim

related to the abortion, which depended on those assertions,

therefore fails, and his claim for withholding of removal, which

requires a "more stringent" showing, necessarily fails as well.

See Mendez-Barrera v. Holder, 602 F.3d 21, 27 (1st Cir. 2010).      As

for Liu's CAT claim, he presents no argument as to why the




                                 -10-
decisions below were in error, and the issue is thus waived.             See

Berrio-Barrera v. Gonzales, 460 F.3d 163, 168 n.2 (1st Cir. 2006).

            We turn next to Liu's asylum claim based on his newfound

adherence to Falun Gong.         It too was a belated assertion, added

after the change in law by the Attorney General in an apparent

effort to strengthen a weakened claim. Here, although Liu's asylum

claim related to his wife's forced abortion could be viewed as

distinct from his claim related to his Falun Gong practice, the

REAL ID Act gave the IJ discretion to draw the "falsus in uno,

falsus in omnibus" (false in one thing, false in everything)

inference.    See Castañeda-Castillo v. Gonzales, 488 F.3d 17, 23 &

n.6 (1st Cir. 2007) (en banc).           Indeed, in some sense the Act

confirmed the IJ's discretion to do so, because drawing this

inference was permissible in appropriate circumstances even before

adoption of the "totality of the circumstances" rule.            See, e.g.,

Yongo v. INS, 355 F.3d 27, 34 (1st Cir. 2004) (holding that when an

applicant's "credibility has been seriously forfeit, the fact-

finder may be left in enough doubt about the balance of the

testimony to conclude that the applicant has not proved his case").

            In short, having concluded that Liu lacked credibility in

describing the events surrounding his wife's forced abortion, the

IJ had an ample basis for concluding that Liu was not a sincere

adherent of Falun Gong.          The belated nature of his purported

adherence    to   Falun   Gong    and   of   his   claim   reinforces   that


                                    -11-
conclusion.        His asylum claim based on his supposed adherence thus

fails.          Again,   this   failure       means    that   his    application     for

withholding of removal necessarily fails as well.                           See Mendez-

Barrera, 602 F.3d at 27.

                As for Liu's CAT protection claim related to Falun Gong,

substantial evidence supported the decisions of the BIA and the

IJ.1   Indeed, Liu's petition for review does not even point to any

error below.           Rather, he simply notes his own testimony that he

fears being tortured and refers to a report from the Department of

State, which he summarizes as establishing that "some Falun Gong

members have been tortured in [government] custody."                        Even if Liu

were       a   sincere   adherent    of   Falun       Gong,   the   report    does   not

demonstrate that he is entitled to CAT protection.                           While such

"reports can be a valid source of evidence with respect to CAT

claims,"        they     do   not   as    a    rule     "supplant     the     need   for

particularized evidence in particular cases."                       Amouri v. Holder,

572 F.3d 29, 35 (1st Cir. 2009).                 Liu does not explain why it is

"more likely than not" that he would be tortured, as CAT protection

requires.        8 C.F.R. § 1208.16(c)(2).

                The petition for review is denied.




       1
       We want to be clear that an adverse credibility finding that
is fatal to an asylum application is not automatically fatal to a
CAT claim. See Settenda v. Ashcroft, 377 F.3d 89, 94-95 (1st Cir.
2004).

                                          -12-
