                                                      [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                                                                FILED
                      ________________________ U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                                                             December 29, 2005
                            No. 05-12855
                                                             THOMAS K. KAHN
                        Non-Argument Calendar                    CLERK
                      ________________________

                        Agency No. A78-207-329

RU ZHENG,

                                                                        Petitioner,

                                  versus

U.S. ATTORNEY GENERAL,

                                                                     Respondent.


                      ________________________

                  Petition for Review of a Decision of the
                       Board of Immigration Appeals
                       _________________________

                           (December 29, 2005)

Before MARCUS, WILSON and FAY, Circuit Judges.

PER CURIAM:
      Ru Zheng, a Chinese national, petitions for review of the Board of

Immigration Appeals’s (BIA) decision affirming without opinion the Immigration

Judge’s (IJ) order of removal and denial of asylum and withholding of removal

claims, as well as her claims under the United Nations Convention Against Torture

(CAT). On appeal, Zheng argues that the IJ’s adverse credibility findings and

denial of her asylum, withholding of removal, and CAT claims were not supported

by substantial evidence. For the reasons set forth more fully below, we deny the

petition in part and dismiss in part for lack of jurisdiction.

      According to a notice to appear issued on September 9, 2002, Zheng entered

the United States on or about September 4, 2000, and was charged with

removability for remaining in the United States for a longer time than permitted

and failing to maintain or comply with the conditions of her non-immigrant status

in violation of INA § 237(a)(1)(B), 8 U.S.C. § 237(a)(1)(B) and INA

§ 237(a)(1)(C)(i), 8 U.S.C. § 1227(a)(1)(C)(i), respectively. On November 6,

2002, Zheng signed an application for asylum, withholding of removal, and relief

under CAT, alleging persecution on account of her political opinion, and signed it

again on October 24, 2003, the date of her hearing.

      In a personal affidavit, Zheng explained that she was born in China on April

10, 1981, and while living in China, started a relationship with a man named “Bin



                                            2
Lin.” Zheng became pregnant, and Bin Lin was supportive and willing to marry

Zheng, but the family planning office learned about the pregnancy and the

impending marriage and intervened, telling the two that they were not legally old

enough to marry, and telling Zheng in particular that she had to have an abortion,

which she did under government pressure. After the operation, the government

wanted to insert an intrauterine device (IUD). Later, Zheng was introduced in

China to a man named John, with whom she fell in love, and John applied to have

Zheng travel to the United States to live with him, which the consulate granted.

Zheng subsequently told John about her abortion and previous relationship, and

when Zheng arrived in the United States on September 4, 2000, John did not meet

her at the airport, was not at his apartment, and, apparently, had already moved

away.

        Zheng then went to a “service agency” to apply for asylum, but was told that

she could not apply because she was not married. She feared returning to China

because the government would force her to insert an IUD against her will, and, at

the invitation of her cousin, moved to Jacksonville, Florida, where she began to

enjoy life in the United States.

        Also included with Zheng’s application was a birth certificate stating that

she was born on April 10, 1981, in Changle City, Fujian Province, to Zheng



                                           3
Minsong, her father, and Lu Meifang, her mother. Zheng also attached a certificate

stating that she had undergone an abortion on May 3, 1999, at Changle City

Hospital. Zheng’s parents submitted a letter on her behalf, and stated that Zheng

became pregnant, and she and her boyfriend, Bin Lin, wished to get married, but

could not because of an age requirement. Zheng’s parents hid her at home, but on

May 3, 1999, government officials came to their residence and took Zheng away to

Changle Hospital, where her pregnancy was aborted. Afterwards, despite Zheng’s

poor health, the government insisted that she return to have an IUD inserted.

      Later, Zheng was introduced to a new boyfriend, who had returned from the

United States, and they had not expected that, upon arrival in the United States,

Zheng would be unable to locate her fiancé. Her parents were afraid that Zheng

would be harmed and have family planning problems if returned to China.

Depending on the format of the date, the letter was signed on either June 8 or

August 6, 2003. The record further contained the affidavit of a “retired

demographer formerly employed at the United States Bureau of the Census as a

specialist on demographic developments and population policy in the People’s

Republic of China.” At the removal hearing, the INS objected to the affidavit,

stating that it looked like a prepared and non-specific document, and because the

affiant was not present to testify as an expert, the affidavit should be stricken. The



                                           4
IJ permitted the affidavit as a general overview of country conditions in China, but

because the affiant was not present, it would only be afforded “the proper weight.”

      Among the exhibits attached with the affidavit was a copy of what appears

to be a translation of a document compiled by the “Changle City Family Planning

Policy Leading Team.” The document defines early marriage subjects as males

who are not yet 22 and females who are not yet 20, and states that early marriage

subjects are punished and subjected to the family planning policies. Unmarried

females with any history of pregnancy are required to undergo the insertion of an

IUD. The affidavit also included 97 different exhibits comprising nearly 300

pages, a review of which revealed that they pertained to a general overview and

history of China’s implementation of, and penalties for violating, its family

planning policies without contributing anything specific to Zheng’s claim.

      Zheng testified that she was born in Changle City, China, on April 10, 1981,

and at the time of her hearing, was not married and had no children. She came to

the United States after her fiancé petitioned to get her a K-1 Visa. The two became

engaged in Changle City in April 2000, but when Zheng came to the United States

to join him, her fiancé did not show up at the airport and, despite her efforts, she

was unable to locate him.

      Zheng also testified that in March 1999, she discovered she was two months



                                           5
pregnant by her boyfriend at the time, whom she had met while attending school in

Changle City. Under Chinese law, however, Zheng was not of legal age to be

pregnant, nor could she get married to her boyfriend because she was under the

legal age for that as well. At the advice of her parents and her boyfriend, Zheng

hid in her house for fear that she would be forced to undergo an abortion.

      On May 3, 1999, family planning officers came to her home and informed

Zheng’s parents that someone had reported that Zheng was pregnant and unmarried

in violation of the law. She was arrested at her home and taken to Changle City

Hospital where it was determined that she was four months pregnant. Zheng then

received an injection to abort her pregnancy and, after spending four hours in the

hospital, delivered a still-born baby. Her parents picked her up later that day, and

before being discharged, family planning officials told her that she should return to

the hospital when her health improved in order to have an IUD inserted to prevent

further pregnancies.

      In June and July 1999, officials followed up on their request that Zheng

receive an IUD, at which time she told them that her health had not yet recovered.

They came again in September, but Zheng had returned to school in Fuzhou City,

and Zheng’s parents told officials that she would have the IUD inserted after her

schooling was finished. Zheng did not know the whereabouts of her boyfriend,



                                          6
who did not wish to speak to her following the abortion. When asked why she did

not return to China after arriving in the United States unable to find her fiancé,

Zheng testified that she was afraid that officials would force her to insert the IUD.

Zheng stated that she could not return to either Changle City or Fuzhou City

because she had failed to report to hospitals in either one, and officials would find

her.

       Next, Zheng testified that, after she failed to find her fiancé, she went to a

“service center” seeking to apply for asylum, but was told that she could not apply

without being married. She tried again on two other occasions and received the

same response.

       On cross-examination, Zheng testified that she was 19 years’ old when she

found out she was pregnant, and 19 at the time she was forced to undergo an

abortion on May 3, 1999. Zheng did not have any documentation to prove that she

was pregnant because the diagnosis was made at a private hospital, and she

testified that she never had the IUD inserted because her health was not well

enough for the procedure. Zheng then clarified that she was 19 according to the

American, not Chinese calendar.

       Also included in the administrative record was the State Department’s China

Country Report on Human Rights Practices, issued March 31, 2003. Relevant to



                                            7
Zheng’s claim, the Marriage Law sets the minimum age for women at 20, and for

men at 22 years, and it is illegal in almost all Chinese provinces for a single

woman to bear a child. Recently, the Chinese government implemented a new

“Population and Family Planning” law, intending to standardize the

implementation of the “birth limitation” policies in the local provinces. The new

law required counties to use quotas or other measures to limit the total number of

births in each county, as well as requiring married couples to apply for permission

to have a second child if they meet the stipulated requirements of the local

provinces, which sometimes requires as many as four years between pregnancies.

China’s population control policy relies on education, propaganda, and economic

incentives, as well as more coercive measures such as the threat of job loss or

demotion, and those who have unapproved children are subject to a “social

compensation fee.” In at least one province, the rules state that “unplanned

pregnancies must be aborted immediately,” while in another, women who do not

qualify for a “Family Planning Certificate” that allows them to have a child” must

use an IUD. However, the central government policy formally prohibits the use of

physical coercion to compel persons into abortion, and under the “state

compensation law,” citizens may sue officials who exceed their authority in

implementing birth planning policy.



                                           8
      The record also contained the Department of State’s 1998 “Profile of

Asylum Claims” for China. It reports that, despite some forced abortions in areas

with poorly trained and uneducated family planning workers, there has been

success at deterring the number of forced abortions since the early to mid 1980'.s

The report also indicated that the Fujian Province has been criticized in the official

press for its lax enforcement of family planning rules. Furthermore, the United

States Consulate General in Guangzhou was not aware of any forced abortions of

illegitimate children or children of couples with an early marriage in the Fujian

Province, although it could not exclude the possibility. Relevant to Zheng’s claim:

      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 of a forced abortion. According to
      Embassy officials, the only document that might resemble such a
      certificate and result in confusion is a document issued by hospitals
      upon a patient’s request after a voluntary abortion. This certificate is
      used by patients as evidence to request 2 weeks of sick leave after an
      abortion has been performed, a right provided by the law.

Finally, in the Fujian Province, “sterilization or the use of the IUD appears to be

urged only for families who have already had two children . . . .”

      In closing, Zheng argued that her testimony at the hearing was consistent

with her application, and requested that her application for asylum be considered

timely because she tried to apply within one year of her entry, but received bad

advice about her qualifications from the center, constituting “extraordinary

                                           9
circumstances.” In any event, she requested that she be granted withholding of

removal.

      The IJ, after noting that Zheng previously had conceded to the removal

charges, found that her application for asylum was untimely filed, and, therefore,

would not be considered. It next considered her claim for withholding of removal,

and found that Zheng’s testimony, that she was 19 at the time of her pregnancy and

abortion, created a conflict with her birth certificate, which indicated that she was

17 at the time she became pregnant and 18 at the time of the abortion. It further

found that Zheng had testified that she did not have any certificate to prove her

abortion because it was done at a private hospital, which was contradicted by an

abortion certificate in the record. The IJ found that the record suffered from

credibility problems as a result of these discrepancies, and that the country reports

indicated that abortion certificates were obtained only if the abortion was

voluntary, not coerced, and that there was no explanation for how she obtained the

abortion certificate in the record. “With those credibility problems,” the IJ did not

believe Zheng had met her high burden of proof for withholding of removal relief.

Moreover, the IJ found that Zheng had not proven that she would continue to fear

persecution if she returned to Fuzhou City and had failed to demonstrate any

evidence that she could not relocate somewhere within China to avoid insertion of



                                          10
an IUD. Finally, the IJ denied Zheng relief under the CAT.

      Zheng appealed to the BIA, arguing that the IJ had improperly denied

asylum and withholding of removal relief because her testimony was clear,

consistent, and credible. She further argued that her application was not

time-barred due to extraordinary circumstances. The BIA affirmed, without

opinion, making the IJ’s decision the final agency determination.

      Since the passage of the REAL ID Act of 2005, the permanent rules are

applicable to all petitions for review, and, therefore, the permanent rules apply to

Zheng’s petition as well. See Tovar-Alvarez v. U.S. Att’y Gen., 427 F.3d 1350,

1351 (11th Cir. 2005). When the BIA summarily affirmed the IJ’s decision

without an opinion, the IJ’s decision became the final removal order subject to

review. See Mendoza v. United States Attorney Gen., 327 F.3d 1283, 1284 n.1

(11th Cir. 2003) (citing 8 C.F.R. § 3.1(a)(7) (2002)).

                                      I. Asylum

      Zheng argues on appeal that she is eligible for asylum because substantial

evidence establishes that she is a refugee within the meaning of the INA. She

argues that her forced abortion established past persecution and her actions in

violating the family planning policy by getting pregnant under the legal age, as

well as her refusal to have an IUD inserted, established a well-founded fear of



                                          11
future persecution if returned to China. Zheng further argues that the

“extraordinary circumstances” exception to the one-year deadline for filing asylum

applications applies to her because the erroneous advice she received when she

originally sought asylum amounts to ineffective assistance of counsel.

      We review subject matter jurisdiction de novo. Ortega v. U.S. Att’y Gen.,

416 F.3d 1348, 1350 (11th Cir. 2005). As amended by IIRIRA, INA

§ 208(a)(2)(B), 8 U.S.C. § 1158(a)(2)(B), provides that an alien may not apply for

asylum unless he demonstrates by clear and convincing evidence that the

application was filed within one year of his arrival in the United States. A late

application for asylum may be considered if the alien demonstrates to the Attorney

General’s satisfaction the existence of either changed circumstances or

extraordinary circumstances relating to the delay in filing the application. See INA

§ 208(a)(2)(D), 8 U.S.C. § 1158(a)(2)(D). Pursuant to § 1158(a)(3), however,

“[n]o court shall have jurisdiction to review any determination of the Attorney

General under paragraph (2).” INA § 208(a)(3), 8 U.S.C. § 1158(a)(3).

      In May 2005, Congress passed the REAL ID Act of 2005, which amended

the judicial review provisions of INA § 242(a), 8 U.S.C. § 1252(a), to permit

review of all constitutional claims and questions of law, notwithstanding any other




                                          12
provision of the statute.1 See REAL ID Act, Pub. L. 109-13, 119 Stat 231

§ 106(a)(1)(ii) (May 11, 2005).

       Recently, we held that, even in light of the REAL ID Act, we lacked

jurisdiction to review whether a petitioner had filed his asylum application within

one year or established extraordinary circumstances. See Chacon-Botero v. U.S.

Att’y Gen., 427 F.3d 954, 957 (11th Cir. 2005). Holding that such determinations

were factual and discretionary, we adhered to our “existing precedent that 8 U.S.C.

§ 1158(a)(3) divests our Court of jurisdiction to review a decision regarding

whether an alien complied with the one-year time limit or established extraordinary

circumstances that would excuse his untimely filing.” Id.

       Accordingly, as the IJ found that Zheng’s claim was time-barred and that the

extraordinary circumstances exception did not apply, we conclude that we lack

jurisdiction to review Zheng’s asylum claim. Therefore, Zheng’s asylum claim is

dismissed. Her withholding of removal claim, however, may be reviewed.

                    II. Withholding of Removal and CAT Relief

       Zheng first argues that the IJ’s adverse credibility finding, as it related to her



       1
          The amendment adds § 242(a)(2)(D) to read: “Nothing in subparagraph (B) or (C), or in
any other provision of this Act (other than this section) 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.”

                                              13
age at the time of the pregnancy and the abortion in question and the validity and

veracity of the abortion certificate, was not supported by substantial evidence. As

for her age, Zheng argues that the record shows that she had a forced abortion at

18, and that any error can be reconciled because Zheng likely confused the

American and Chinese calendars and, in any event, whether she was 18 or 19, she

was below the legal age for bearing children, giving credence to her claim of a

forced abortion. Secondly, as to the abortion certificate, Zheng argues that the IJ

misconstrued her testimony, as she was never asked how she obtained an abortion

certificate. Next she argues that, while the Country Profile states that abortion

certificates are usually issued to patients undergoing voluntary abortion, the

Chinese government repeatedly denies the use of force in abortions and, therefore,

certificates could be issued solely to make the abortions appear less coerced.

Zheng then argues that she was entitled to withholding of removal because the

circumstantial evidence of her past persecution and refusal to have an IUD inserted

demonstrate that it is more likely than not she will be persecuted if returned to

China. Finally, she argues she is entitled to CAT relief because she has already

suffered torture by having a forced abortion, fears further harm from the forced

insertion of an IUD, and cannot relocate within China to avoid the harm.

      To the extent that the IJ’s decision was based on a legal determination,



                                          14
review is de novo. Mohammed v. Ashcroft, 261 F.3d 1244, 1247-48 (11th Cir.

2001). The IJ’s factual determinations are reviewed under the substantial evidence

test, and we “must affirm the [IJ’s] decision if it is ‘supported by reasonable,

substantial, and probative evidence on the record considered as a whole.’” Al

Najjar v. Ashcroft, 257 F.3d 1262, 1283-84 (11th Cir. 2001) (citation omitted).

Thus, factual determinations “may be reversed by this court only when the record

compels a reversal; the mere fact that the record may support a contrary conclusion

is not enough to justify a reversal of the administrative findings.” Adefemi v.

Ashcroft, 386 F.3d 1022, 1026 (11th Cir. 2004) (en banc), cert. denied by Adefemi

v. Gonzales, 125 S.Ct. 2245 (May, 16, 2005).

       As with other factual findings, “[c]redibility determinations . . . are reviewed

under the substantial evidence test.” D-Muhumed v. U.S. Attorney General, 388

F.3d 814, 818 (11th Cir. 2004).2 “The trier of fact must determine credibility, and

this court may not substitute its judgment for that of the [IJ] with respect to

credibility findings.” Id. (citation omitted). Furthermore, “an adverse credibility

determination alone may be sufficient to support the denial of an asylum



       2
          It is noted that the REAL ID Act amended, among other things, the judicial review of
credibility determinations. See REAL ID Act of 2005, Pub.L. 109-13, 119 Stat. 302 (May 11,
2005). However, those amendments do not apply to applications filed prior to May 11, 2005, the
effective date of the amendments. See id. § 101(h); see also Ssali v. Gonzales, 424 F.3d 556,
562 n.4 (7th Cir. 2005).

                                              15
application.” Forgue v. U.S. Attorney General, 401 F.3d 1282, 1287 (11th Cir.

2005). On the other hand, “an adverse credibility determination does not alleviate

the IJ’s duty to consider other evidence produced by an asylum applicant. That is,

the IJ must still consider all evidence introduced by the applicant.” Id. (emphasis

in original). We require that the IJ “offer specific, cogent reasons for an adverse

credibility finding.” Id. “A credibility determination, like any fact finding, ‘may

not be overturned unless the record compels it.’” Id.

      Pursuant to INA § 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A), the Attorney

General:

      [M]ay not remove an alien to a country 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.

INA § 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A). The burden of proof is on the

applicant to establish that she would face persecution on account of one of the five

covered grounds upon return to the proposed country of removal. See 8 C.F.R.

§ 208.16(b). If the applicant is determined to have suffered past persecution in the

proposed country of removal, a rebuttable presumption arises that her life or

freedom would again be threatened upon removal to the proposed country. 8

C.F.R. § 208.16(b)(1)(i).

      In order to rebut the presumption, the INS can show, by a preponderance of

                                          16
the evidence, that (1) there has been a fundamental change in circumstances such

that the applicant’s life or freedom would not be threatened on any of the five

enumerated grounds in the country of removal; or (2) the applicant could avoid a

future threat by relocating within the proposed country and that it would be

reasonable to expect her to do so. 8 C.F.R. §§ 208.16(b)(1)(i)(A)-(B). If an

applicant has failed to prove past persecution, or failed to show that her fear of

future persecution is related to her past persecution, then the inquiry shifts to

whether an applicant has demonstrated that, if returned to the country of removal,

it is “more likely than not” that she will be persecuted on account of one of the five

enumerated grounds. 8 C.F.R. §§ 208.16(b)(iii), (b)(2).

      The IJ in this case found that Zheng’s claims lacked credibility, focusing

principally on discrepancies regarding Zheng’s age at the time she found out she

was pregnant and at the time she was forced to have her abortion. Zheng’s birth

certificate and testimony were consistent as to her date of birth: she was born on

April 10, 1981. However, Zheng’s testimony was that she found out she was

pregnant in March 1999, at which point she would have been 17 years’ old, not 19

as she testified at her hearing. Furthermore, her abortion took place on May 3,

1999, at which point she would have been 18, not 19, as she testified at her

hearing. Zheng presents the possibility that she confused the American and



                                           17
Chinese calendars. However, Zheng specifically testified on direct/redirect that

she referred to her age based on the Western/American calendar. Thus, substantial

evidence supports the IJ’s conclusion that Zheng’s testimony as to these important

events lack credibility.

      As to the abortion certificate, the IJ erred by stating that Zheng failed to get

an abortion certificate because she went to a private hospital. What Zheng actually

testified was that she did not have a certificate of pregnancy because she found out

about her pregnancy at a private hospital. However, when asked if she had any

documentation at all, Zheng replied that she did not, although a certificate

indicating that she had an abortion would have been evidence of a pregnancy.

Notwithstanding the IJ’s erroneous statement regarding Zheng’s testimony, there

was this evidence relevant to the abortion certificate:

      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 of a forced abortion. According to
      Embassy officials, the only document that might resemble such a
      certificate and result in confusion is a document issued by hospitals
      upon a patient’s request after a voluntary abortion. This certificate is
      used by patients as evidence to request 2 weeks of sick leave after an
      abortion has been performed, a right provided by the law.

While her initial brief posits a number of possible reasons the Chinese government

might issue an abortion certificate, Zheng failed to cite to any direct evidence in

support of those claims. Accordingly, when the IJ found that abortion certificates

                                          18
are not issued by the Chinese government unless they are performed voluntarily,

that finding was supported by substantial evidence.

      Therefore, the IJ’s adverse credibility finding was supported by substantial

evidence, and the record does not compel a reversal of the IJ’s determination that

Zheng failed to establish her eligibility for withholding of removal, or for that

matter, past persecution. Furthermore, the IJ found that Zheng had failed to prove

that it was more likely than not that she would face persecution if returned to China

based on her fear of being required to insert an IUD.

      The IJ’s finding was supported by substantial evidence. Zheng testified that

family planning officials went to her parents’ home in Changle City to ensure that

Zheng reported for the IUD insertion, but no officials ever came to her school in

Fuzhou City. In fact, Zheng specifically testified that she had “no problem” while

in school. Furthermore, her boyfriend from the pregnancy and her former fiancé

are both out of contact with Zheng, and, while Zheng was under the legal age for

pregnancy and marriage at the time of her pregnancy, she is now 24 years’ old,

above the legal age for both. While Zheng testified that she would be sought out in

Fuzhou City for failing to report to family planning officials, she failed to explain

why they would pursue her there given that they had not pursued her while she was

attending school. Accordingly, the IJ’s determination that Zheng failed to meet her



                                          19
burden of proof for withholding of removal does not compel a reversal.

          Lastly, to the extent Zheng properly exhausted her administrative appeal of

the IJ’s denial of CAT relief, because she failed to demonstrate that it was more

likely than not that she would be persecuted if returned to China, she likewise is

unable to demonstrate that it is “more likely than not” that she will be tortured

either.

          Accordingly, because we conclude that we lack jurisdiction over Zheng’s

asylum claim, and that substantial evidence supports the IJ’s adverse credibility

determination and denial of withholding of removal and CAT relief. Therefore, we

dismiss the petition in part and deny in part.

          PETITION DENIED IN PART, DISMISSED IN PART.




                                            20
