                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 05-1678



RU LIN; SHANG CHENG LIN,

                                                        Petitioners,

           versus


ALBERTO R. GONZALES, Attorney General,

                                                         Respondent.



On Petition for Review of an Order of the Board of Immigration
Appeals. (A95-153-949; A95-153-950)


Argued:   March 15, 2006                    Decided:   July 18, 2006


Before MICHAEL, KING, and GREGORY, Circuit Judges.


Petition for review denied by unpublished per curiam opinion.


ARGUED: Gang Zhou, LAW OFFICES OF GANG ZHOU, ESQ., New York, New
York, for Petitioners. Thomas L. Holzman, UNITED STATES DEPARTMENT
OF JUSTICE, Office of Immigration Litigation, Civil Division,
Washington, D.C., for Respondent. ON BRIEF: Peter D. Keisler,
Assistant Attorney General, Civil Division, Donald E. Keener,
Deputy Director, UNITED STATES DEPARTMENT OF JUSTICE, Office of
Immigration Litigation, Civil Division, Washington, D.C., for
Respondent.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

               Ru Lin (Lin), a native and citizen of China, filed an

application for asylum and other relief. An immigration judge (IJ)

denied Lin’s application on two alternative grounds: that Lin

failed    to    prove   by    clear    and    convincing     evidence   that    the

application was timely filed and that Lin’s testimony was not

credible. The Board of Immigration Appeals (BIA) affirmed, and Lin

petitions this court for review.              Lin argues that the IJ violated

her due process rights in determining that she had not proven the

timeliness of her asylum application.               Lin further argues that the

IJ’s    adverse     credibility       determination     is   not   supported     by

substantial       evidence.      We    find    no   reversible     error   in   the

administrative proceedings and therefore deny Lin’s petition for

review.



                                         I.

               In September 2001 Lin submitted an application for asylum

and withholding of removal under 8 U.S.C. §§ 1158(a)(1), 1231(b)(3)

and for relief under the Convention Against Torture, see 8 C.F.R.

§ 208.16(c).      She presented the following evidence at her December

2003 hearing.

               Lin met her husband, Shang Cheng Lin, in China in late

1998.     In November 1999 she learned that she was pregnant.                    On

December 1, 1999, the couple married in an unofficial, traditional


                                          2
Chinese ceremony.      They were not able to obtain an official

marriage certificate because they did not meet the legal age

requirements to be married in China. After the couple was married,

Lin began residing at the home of her in-laws.        Lin and her husband

later moved to the home of her in-laws’ friend in Fuzhou City

because they feared that local birth control authorities would

discover Lin’s pregnancy.     In early January 2000 two birth control

officers came to Lin’s in-laws’ residence and told the in-laws that

they had discovered Lin’s unofficial marriage.               The officials

further said that Lin must report to family planning authorities

for the implantation of an intrauterine device (IUD).                  Lin’s

mother-in-law   told   the   officials   that   Lin   was    still   on    her

honeymoon but she would relay the instruction when Lin returned.

In mid-March 2000 the authorities returned and, again not finding

Lin there, told the in-laws that if Lin was pregnant without a

legal marriage she should undergo an abortion.

          Government    officials   finally     discovered    Lin    and   her

husband at the house in Fuzhou City in June 2000 while conducting

a household registration check. The officers entered the house and

directed everyone to present their personal identification cards.

When the officers saw that Lin did not belong to the household and

was pregnant, they ordered her to come with them.              She refused

because she believed that she would have to undergo an abortion.

The officials began to drag her, and her husband attempted to


                                    3
intervene.     The officials beat Lin’s husband for obstructing

official duties, causing his nose to bleed. The officials took Lin

by car to the town security bureau.

            After a few hours birth control officials took Lin from

the security bureau to a hospital where they forced her to undergo

an abortion.     About a week after the abortion Lin was forcibly

implanted with an IUD.     Less than one year later, in April 2001,

Lin discovered that she was pregnant again, “due to the missing of

the IUD.”    J.A. 524.   At that time she and her husband decided to

leave China for the United States.     They left China on April 20,

2001, and traveled to Toronto where they remained for nineteen days

until entering the United States with the help of smugglers.    Lin

presented no proof of when she and her husband entered the United

States, though she asserts that they entered on May 10, 2001.

            Lin and her husband agreed to pay the smugglers $50,000

after their arrival in the United States.       Lin worked with her

husband at his uncle’s restaurant in Washington, D.C., where she

was paid $1,700 per month and her husband was paid $1,500 per

month.   (Lin and her husband resided in Washington, D.C., and New

York City at various points during their stay in the United States,

although it is unclear exactly when and for how long each resided

in each city.)   Although Lin worked for about one to two years, she

did not state this employment on her asylum application form.

Lin’s husband testified at the hearing that in the two years they


                                   4
had lived in the United States, they paid nearly all of the $50,000

debt owed to the smugglers.   They “had some savings” that they used

to repay the debt, J.A. 192, and they sent about $10,000 per year

to China for the repayment. During this time, Lin’s husband rented

lodging in New York for $300 per month.    He also bought a diamond

ring worth several hundred dollars for Lin while they were in the

United States.

            About seven months after the Lins’ arrival in the United

States, in December 2001, Lin gave birth to a baby boy.    When the

boy was five months old he was sent to China to be cared for by

Lin’s mother.    Lin explained that they sent the baby to China so

that Lin could earn money and “provide [her] children a better

future.”    J.A. 154.

            Lin applied for asylum, withholding of removal, and

relief under the Convention Against Torture (CAT) in September

2001, a few months before she gave birth.        In a notice dated

October 31, 2001, the Immigration and Naturalization Service (INS)

informed Lin that it would not grant her asylum application but

that she could renew her application before an IJ.          The INS

subsequently initiated removal proceedings against Lin and issued

a Notice to Appear (NTA) at a removal hearing.      The NTA alleged

that Lin entered the United States “on or about May 10, 2001.”

J.A. 545.    At a hearing before an IJ in April 2002, Lin admitted

the factual allegations in the NTA, conceding her removability.


                                  5
However, she sought relief from removal by renewing her application

for asylum, withholding of removal, and relief under the CAT.          The

IJ held an evidentiary hearing on Lin’s application for relief on

December 10, 2003.     At the hearing Lin presented a certificate of

abortion that was allegedly given to her after the forced abortion.

Lin explained at the hearing that her mother-in-law attempted to

authenticate   the    abortion   certificate   in   China    but   Chinese

officials refused to notarize the document.         The IJ denied Lin’s

application upon finding, first, that she had not presented clear

and convincing evidence that her application was timely filed and,

second, that her testimony was not credible.          Lin appealed the

decision to the BIA, and on May 27, 2005, the BIA dismissed the

appeal.   This petition for review followed.



                                   II.

           Lin argues that the IJ denied her due process in finding

that she failed to present clear and convincing evidence that her

application was filed within one year after her arrival in the

United States.       See 8 U.S.C. § 1158(a)(2)(B).      In making this

finding, the IJ cited reasons to disbelieve Lin’s assertion that

she arrived in the United States on May 10, 2001.           Lin’s husband

testified that they had repaid nearly all of the $50,000 debt to

the smugglers at a rate of about $10,000 per year, indicating that

the Lins were in the United States before their alleged arrival


                                    6
date of May 2001.         Furthermore, of all the documents submitted,

none placed Lin outside the United States between September 2000

and May 2001.       Lin also provided no corroborating evidence of her

presence in Canada prior to entering the United States. Lin argues

that she presented no such evidence at the hearing because the

government had not previously raised the issue.                  In other words,

Lin contends that she had no notice that she would need to present

evidence concerning the timeliness of her application.



                                          A.

               Lin’s due process claim raises a threshold jurisdictional

issue. An alien applying for asylum must demonstrate “by clear and

convincing evidence that the application [for asylum] has been

filed within 1 year after the date of the alien’s arrival in the

United States.”         8 U.S.C. § 1158(a)(2)(B).            The Immigration and

Nationality       Act    (INA)     limits        judicial    review     of     agency

determinations as to whether the one-year filing requirement has

been    met:      “No   court    shall    have    jurisdiction    to    review    any

determination of the [BIA] under [this provision].”                   § 1158(a)(3).

Until    recently,      courts    of     appeal    have     uniformly   held     that

§ 1158(a)(3) deprives them of jurisdiction to review BIA timeliness

determinations such as this one.                  See Chen v. U.S. Dep’t of

Justice, 434 F.3d 144, 151 (2d Cir. 2006) (collecting cases).                     The

REAL ID Act of 2005, however, added a new jurisdictional provision


                                           7
to the INA that broadens judicial review. The new provision, which

applies retroactively, states:                    “Nothing in . . . any . . .

provision of this [Act] . . . which limits or eliminates judicial

review[] shall be construed as precluding review of constitutional

claims or questions of law raised upon a petition for review filed

with an appropriate court of appeals in accordance with this

section.”          REAL   ID      Act     of      2005,     Pub.    L.      No.      109-13,

§ 106(a)(1)(A)(iii), 119 Stat. 302, 310 (codified at 8 U.S.C.

§ 1252(a)(2)(D)).         The REAL ID Act thus confers upon courts of

appeal   a      narrowly       circumscribed          jurisdiction           to      resolve

constitutional        claims   or       questions     of     law    raised      by    aliens

challenging a timeliness determination.                    See Higuit v. Gonzales,

433 F.3d 417, 419 (4th Cir. 2006).

             Because      Lin’s     challenge         to     the     IJ’s       timeliness

determination is a constitutional one, this court has jurisdiction

to entertain her claim. As other courts have noted, the timeliness

of an alien’s asylum application is usually a question of fact.

See   Mehilli    v.     Gonzales,       433    F.3d   86,     93    (1st    Cir.      2005).

Accordingly,       in   most   cases      courts      of    appeal       will     not    have

jurisdiction to review a timeliness determination despite the REAL

ID Act’s jurisdiction-enhancing provision.                   In this case, however,

Lin does not challenge the IJ’s factual determination as to the

timeliness    of    her   application.             Rather,    she    argues       that    the

procedures used to assess her asylum claim unconstitutionally


                                              8
denied her the opportunity to present evidence on the timeliness

issue.   This claim thus raises a constitutional question that we

have jurisdiction to review.



                                      B.

              We turn then to the merits of Lin’s due process claim.

She argues that because the NTA alleges that she entered the United

States on May 10, 2001, and because she conceded the truth of that

factual allegation in an earlier hearing before the IJ, she did not

have notice of the need to submit evidence of her entry date.                      Due

process requires that an alien who faces removal be provided (1)

notice   of    the   charges    against       her,    (2)   a   hearing   before   an

executive or administrative tribunal, and (3) a fair opportunity to

be heard.      United States v. El Shami, 434 F.3d 659, 665 (4th Cir.

2005).   In order to prevail on a due process challenge to an asylum

hearing, an alien must also demonstrate that she was prejudiced by

the alleged due process violation.             Rusu v. INS, 296 F.3d 316, 320

(4th Cir. 2002).

              As an initial matter, we note that removal hearings often

consist of two parts:          determination of the alien’s removability

followed by consideration of any applications by the alien for

discretionary relief from removal.                   Richard D. Steel, Steel on

Immigration Law § 14:21 (2d ed. 2005).               Whereas the burden of proof

as to the first part, removability, rests generally with the


                                          9
government, it is well-settled that the burden of proof as to the

second part, discretionary relief from removal, rests with the

alien.    8 U.S.C. § 1229a(c)(4).            In cases such as this one, where

removal proceedings are initiated by an asylum application and

there is no dispute that an alien is removable, removability is

often determined by the aliens’ admission of the facts alleged in

the NTA.     Steel, supra, § 14.21.                An alien will make such an

admission so that the removal proceedings can move on to the real

issue at hand:        whether the alien is eligible for discretionary

relief from removal. Id. Accordingly, early in the proceedings in

this case, Lin admitted the facts alleged in the NTA and conceded

her removability.           This allowed the parties to focus on her

application for discretionary relief, the main issue in her case.

            We conclude that Lin had fair notice of the need to

present    evidence    to     prove    that      she   met   the   one-year   filing

requirement. The statute governing asylum procedures unequivocally

states    that   an   alien    is     not   eligible     for   asylum   unless   she

“demonstrates by clear and convincing evidence that the application

has been filed within 1 year after the date of [her] arrival in the

United States.” 8 U.S.C. § 1158(a)(2)(B). Any asylum applicant is

thus put on notice that she bears the burden of proving her date of

entry.

            It is true that the NTA alleged that Lin entered the

United States on or about May 10, 2001, and that Lin conceded the


                                            10
truth of the facts alleged in the NTA at her initial hearing.               But

Lin’s concession did not necessarily relieve her of her burden of

proving her entry date for the purpose of her asylum application.

The regulations governing removal proceedings are silent as to the

evidentiary    effect   of     an   alien’s   concession.      Although    the

regulations contemplate that parties will stipulate to certain

facts in order to “simplify and organize the [removal] proceeding,”

8 C.F.R. § 1003.21, there is no indication that Lin and the

government entered into any stipulation here. In civil litigation,

       [a] requirement for evidence ceases to apply where the
       opponent, by express statement made for the purpose of
       trial, has (1) conceded the truth of a fact, (2) or,
       assented to a specific mode of evidencing it, (3) or,
       waived the introduction of a specific piece of evidence,
       (4) or, waived the prohibition or limited conditions of
       a specific rule of evidence.

22 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice

and Procedure § 5194 (1978 & Supp. 2005) (quoting Wigmore, Code of

Evidence 542 (3d ed. 1942)).           Using this rule for guidance, we

doubt that Lin’s admission relieved her of her burden of proving

the timeliness of her asylum application.           The concession relieved

only   her   opponent   (the    government)   of    its   burden   to   present

evidence to establish her removability.            Lin’s concession did not

mean, however, that the government (or the IJ) was bound to treat

the alleged May 10, 2001, entry date as conclusive for the purpose

of Lin’s asylum application.         Cf. 8A Charles Allen Wright, Arthur

R. Miller & Richard L. Marcus, Federal Practice and Procedure


                                       11
§ 2264 (2d ed. 1994) (explaining that although an admission made

pursuant to Federal Rule of Civil Procedure 36 binds the party who

made it, the admission does not bind the party who requested it).

By way of comparison, if Lin and the government had instead entered

into a stipulation regarding her entry date, she presumably would

have been relieved of her burden because her opponent would have

“waived the introduction of a specific piece of evidence.”           But

because Lin and the government did not stipulate to her date of

entry (that is, the government did not waive the introduction of

evidence as to the timeliness of her asylum application), she

should not have assumed that there was no need to present evidence

as to her entry date.

          Even if Lin was justified in believing that she did not

need to present evidence about her entry date at the hearing, her

due process claim would not succeed.        Near the end of her hearing,

it became apparent that the IJ expected Lin to submit evidence as

to her entry date.      At this point, Lin could have moved for a

continuance of the hearing so that she could collect and present

such evidence, see 8 C.F.R. § 1003.29, but she did not make such a

motion.   When the IJ asked Lin’s lawyer whether she had any

evidence to prove her entry date, Lin’s lawyer simply responded,

“Certainly, at this point, [we] do not because that issue has never

been raised before.”    J.A. 219.        Similarly, Lin could have later

filed a motion to reopen the proceedings, see 8 C.F.R. § 1003.23,


                                    12
in order to present evidence of her entry date.                     Although the

agency has broad discretion to honor or deny these requests, the

availability of these procedures satisfies us that Lin had a fair

opportunity to be heard.

             Lin attempts to bolster her due process claim by arguing

that the government failed to give her the notice required by 8

C.F.R. § 1003.30.         This regulation provides that “[a]t any time

during deportation or removal proceedings, additional . . . factual

allegations may be lodged by the [INS] in writing.              The alien shall

be served with a copy of these additional . . . allegations and the

IJ shall read them to the alien.”             8 C.F.R. § 1003.30.     The problem

with this argument is that the government made no “additional”

factual allegations against Lin during the course of her removal

proceedings that would entitle her to notice.                The government’s

allegation is, and always was, that Lin entered the United States

on or around May 10, 2001.         If there is any complaint to be made

about the government’s conduct in this case, it is that the

government    did   not    waive   the   requirement     that   Lin    prove   the

timeliness of her asylum application in light of its factual

allegation as to her date of entry.            But Lin argues something else,

specifically, that the government was obligated to give her some

kind of notice that timeliness was going to be an issue at the

hearing.   See J.A. 220 (“I don’t know how this issue . . . could be

raised [at] the last moment and never raised before . . . .”).                  It


                                         13
is of no moment, however, that the government did not raise the

issue   of   her     asylum    application’s     timeliness    earlier      in    the

proceedings because, as explained above, the burden of proof

remained on Lin throughout the proceedings to prove her eligibility

for asylum.

             Finally, Lin’s due process claim, even if otherwise

meritorious, would fail because she cannot show prejudice.                        See

Rusu, 296 F.3d at 320.                The IJ made an adverse credibility

determination, discussed below, that constituted an independent

alternative ground for rejecting Lin’s asylum application.                        In

other words, Lin would not have been granted asylum even if her

application had been timely filed because the IJ did not credit her

overall    testimony.         Lin’s   due   process   challenge      to    the   IJ’s

timeliness determination therefore fails.



                                        III.

             Lin next argues that the BIA erred by finding that the IJ

made an adverse credibility determination.              According to Lin, the

IJ made no explicit credibility finding and the BIA therefore

violated     Lin’s    due     process   rights   when   it    made    an    adverse

credibility determination for the first time on appeal.                          This

argument is unfounded because the IJ did, in fact, make an explicit

adverse credibility finding.            The IJ stated, “[W]e do not believe

the respondent and we make an adverse credibility finding.”                      J.A.


                                         14
63.    The BIA did not commit a due process violation in proceeding

on    the   basis   that   the    IJ    had   made   an    adverse   credibility

determination.



                                        IV.

             Finally, Lin argues that the IJ erred in finding that her

testimony was not credible.             We must defer to an IJ’s adverse

credibility determination that is supported by substantial evidence

on the record “considered as a whole.”                  Blanco de Belbruno v.

Ashcroft, 362 F.3d 272, 278 (4th Cir. 2004) (quoting INS v. Elias-

Zacarias, 502 U.S. 478, 481 (1992)).            This deference is broad but

not absolute:       an IJ who rejects a witness’s testimony because in

his or her judgment it lacks credibility should offer a specific,

cogent reason for his or her disbelief.                Camara v. Ashcroft, 378

F.3d 361, 367 (4th Cir. 2004).            “Examples of specific and cogent

reasons ‘include inconsistent statements, contradictory evidence,

and inherently improbable testimony; [in particular,] where these

circumstances exist in view of the background evidence on country

conditions, it is appropriate for an Immigration Judge to make an

adverse credibility determination on such a basis.’”                   Tewabe v.

Gonzales,    446    F.3d   533,   538    (4th   Cir.      2006)   (alteration   in

original) (quoting In re S-M-J-, 21 I. & N. Dec. 722, 729, 1997 WL

80984 (BIA 1997) (en banc)).              If the IJ’s adverse credibility

determination is not based on a specific, cogent reason, but is


                                         15
instead   based    on   speculation,     conjecture,   or    an    otherwise

unsupported personal opinion, it cannot be upheld because it will

not have been supported by substantial evidence.            Id.

          The IJ cited a number of reasons for discrediting Lin’s

testimony.   For instance, the IJ found that the documents Lin

submitted as proof of her abortion were unreliable because they

were not authenticated.       The IJ also cited the State Department

country condition report observing that documentation from the

Fuzhou region “is subject to widespread fabrication and fraud.

This includes documents that purportedly verify . . . births and

birth control measures . . . .”      J.A. 320; see also J.A. 311 (“The

U.S. Embassy and Consulates General are unaware of any so-called

‘abortion certificates,’ which often are presented as part of

asylum applications as evidence a forced abortion.”).             The IJ also

observed that Lin’s medical records relating to the birth of her

child did not document her alleged prior pregnancy and abortion.

According to the IJ, the “medical records no doubt would discuss

what she reported to the doctor about whether she had had any prior

pregnancies.” J.A. 59. In addition, the IJ discounted Lin’s claim

that her IUD was “lost,” J.A. 149, because the claim did not appear

consistent with common experience, and Lin offered no evidence to

explain how “an IUD could fall out of a woman’s body without her

noticing it,”     J.A. 47.   The IJ also had a hard time accepting that

Lin was subjected to a forced abortion during the eighth month of


                                    16
her pregnancy because there was no evidence discussed at the

hearing that late-term abortions were performed in China.                 The IJ

further noted some inconsistencies and omissions in Lin’s asylum

application with respect to her address and employment.

            We must defer to the IJ’s adverse credibility finding

here because it is sufficiently supported by specific, cogent

reasons based on the record as a whole.                To be sure, certain

aspects of the IJ’s credibility determination are problematic. For

instance, the IJ cited a lack of evidence of forced late-term

abortions in China when, in fact, the State Department report in

the record cites examples of such practices in China. In addition,

the IJ cited a lack of pre-natal medical records confirming prior

pregnancies, but Lin submitted a document that arguably documents

a prior pregnancy.         On balance, however, the IJ’s credibility

determination deserves our deference because it is supported by

substantial evidence on the record “considered as a whole.” Blanco

de Belbruno, 362 F.3d      at 278.     For instance, the IJ gave specific

and cogent reasons for doubting that Lin had been implanted with an

IUD.   The lack of reference to an IUD in Lin’s prenatal medical

records suggests that she never had the device.                  Indeed, Lin’s

assertion   that   the   IUD   was    later   “lost”   borders      on   inherent

implausibility.      The    IJ’s     unwillingness     to   fully   credit   the

abortion certification is also defensible in light of information

in the State Department report suggesting that such documents are


                                       17
fraudulent.    Furthermore, the IJ noted that the Lin’s husband’s

testimony about their length of stay in the United States and their

efforts to repay the smuggling debt simply did not add up:             there

is no way they could have repaid $50,000 by the time of the hearing

given the testimony that they paid only about $10,000 per year.

Lin’s   appellate   brief   argues   that   the   IJ   misunderstood    this

testimony because Lin and her husband, in fact, each paid about

$10,000 a year.     Although the evidence in the record concerning

repayment of the debt could be clearer, it is sufficient to support

the IJ’s factual determination that the Lins together paid $10,000

per year.   Finally, the IJ observed a significant inconsistency in

the evidence concerning Lin’s employment.          Lin did not list any

employment on her asylum application.       When the IJ asked Lin at her

asylum hearing whether everything in her application was “true,

correct and up-to-date,” Lin indicated that it was.         J.A. 114.   She

later testified, however, that she had actually been working for

the past year or two.   Because the IJ cited these specific, cogent

reasons for disbelieving Lin’s testimony, we must conclude that the

IJ’s adverse credibility determination is supported by substantial

evidence on the record as a whole.



                                     V.

            For the foregoing reasons, we conclude that the IJ did

not violate Lin’s due process rights in determining that Lin failed


                                     18
to prove by clear and convincing evidence that her application was

timely   filed.   We   further   conclude    that   the   IJ’s   adverse

credibility finding is supported by substantial evidence.          Lin’s

petition for review is therefore denied.



                                            PETITION FOR REVIEW DENIED




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