                 Not for Publication in West’s Federal Reporter
                United States Court of Appeals
                        For the First Circuit

No.   07-2301

                                 LIFEI LIN,

                               Petitioner,

                                      V.

                 MICHAEL MUKASEY, ATTORNEY GENERAL,

                               Respondent.


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



                                   Before

                        Lipez, Circuit Judge,
                   Merritt,* Senior Circuit Judge,
                     and Howard, Circuit Judge.


     David V. Bernal, Assistant Director, Office of Immigration
Litigation, LaTia N. Bing, U.S. Department of Justice, and Anthony
C. Payne, Senior Litigation Counsel with Office of Immigration
Litigation, U.S. Department of Justice, were on brief for
Respondent.

      Wei Jia was on brief for Petitioner.


                                May 8, 2008




      *
       Of the Sixth Circuit, sitting by designation.
     MERRITT, Senior Circuit Judge.             Petitioner Lifei Lin, a

citizen of the People’s Republic of China, applied for asylum,

relief from withholding of removal and relief under the Convention

Against Torture on the ground that he had been arrested and

mistreated by Chinese authorities due to violations of Chinese

family planning laws. Lin seeks review of the Board of Immigration

Appeals’ July 25, 2007, decision dismissing his appeal from an

immigration judge’s March 20, 2006, decision, which denied his

application for asylum and withholding of removal.1             This Court’s

jurisdiction      is governed by section 242 of the Immigration and

Nationality Act, 8 U.S.C. § 1252, as amended by the REAL ID Act of

2005, Pub. L. No. 109-13, Div. B, 119 Stat. 231, which provides for

review of final orders of removal.        Lin contends that the adverse

credibility findings of the immigration judge and upheld by the

Board of Immigration Appeals are not supported by substantial

evidence.    Lin also contends that the Board impermissibly engaged

in its own fact finding and that he was deprived of his due process

rights when the immigration judge failed to explicitly state in the

decision    her   reliance   on   the   REAL   ID   Act   in   assessing   his

credibility under a “totality of the circumstances” standard.              For

the following reasons we deny the petition.




     1
     The immigration judge also denied Lin’s request for protection
pursuant to the Convention Against Terror, but Lin did not appeal
that part of the decision.

                                    -2-
                                    I.

      Mr. Lin was born in Fuzhou City, China, on March 7, 1983.            He

“married” on September 10, 2002, with a celebration among family

and   friends,   but   Lin   acknowledges   that   the   marriage   was   not

official because both the bride and groom were underage under

Chinese law.     A child was born to the union on November 17, 2003.

Lin’s “wife” and son remain in China.              Upon learning of the

pregnancy and the underage marriage, the authorities arrested Lin.

Lin claims he was detained by authorities when he refused to

disclose the whereabouts of his girlfriend for fear she would be

forced to abort and because he was unable to pay the fine.                Lin

left China in 2003 because he feared future persecution based on

his failure to follow China’s family planning laws by marrying

underage and by having a child without permission, as well as his

failure to pay a fine imposed due to the violations.

      After leaving his home, Lin went into hiding – first in China,

then in Holland and Peru.      He eventually made his way to the United

States and arrived at Miami International Airport on February 6,

2005.   Lin had no valid travel documents or other papers and paid

$7,000 or $8,000 for a smuggler to get him into the United States.

He requested political asylum and said he left China because he was

“afraid of being punished for impregnating [his] girlfriend.”             Lin

fears that he would be persecuted if he returned to China for

violations of the family planning laws.


                                    -3-
                                 II.

     To qualify for asylum, an alien needs to demonstrate that he

is a refugee due to previous persecution or a well-founded fear of

future persecution based on race, religion, nationality, membership

in a particular social group, or political opinion.           8 U.S.C. §

1158(b)(1);   Berrio-Barrera v. Gonzales, 460 F.3d 163, 167 (1st

Cir. 2006). With regard to a fear of future persecution, the

applicant must demonstrate an objectively well-founded fear of

persecution on a protected ground and that this fear is genuine.

Aguilar-Solis v. INS, 168 F.3d 565, 572 (1st Cir. 1999) (proving

the objective and subjective components of a well-founded fear of

future persecution requires the petitioner to show her fear is

“both   genuine   and   objectively    reasonable”).   Fear   of   forced

abortion or sterilization is categorized as fear of persecution on

account of political opinion.         8 U.S.C. § 1101(a)(42) (“A person

who has a well-founded fear that he or she will be forced to

undergo [a forced abortion or sterilization] procedure or [is]

subject to persecution for failure, refusal, or resistance [to

undergoing such a procedure] shall be deemed to have a well-founded

fear of persecution on account of political opinion.”); Zheng v.

Gonzales, 475 F.3d 30, 34 (1st Cir. 2007).      In addition, the spouse

of a person forced to undergo sterilization or abortion procedures

may be deemed to have a well-founded fear of persecution.          Lin v.

Ashcroft, 371 F.3d 18, 21 (1st Cir. 2004).       Lin claims persecution


                                  -4-
as the result of the Chinese government’s efforts to enforce its

coerced population control policies, including the possibility of

forced sterilization for him or his girlfriend should he return to

China.

     Lin’s applications were denied because the immigration judge

found that he lacked credibility, primarily due to inconsistencies

among his testimony at the hearing, his asylum application and

statements made during two interviews held shortly after he entered

the country.    See Oral Decision of the Immigration Judge at 9-11.

The immigration judge set out numerous discrepancies in detail in

her decision.   Based on these discrepancies, the immigration judge

discredited the majority of Lin’s claimed fear of persecution and

torture should he return to China.

     For example, the immigration      judge found a discrepancy as to

when Lin’s girlfriend’s pregnancy was reported to the authorities.

Lin testified at his hearing that his “wife” had been pregnant for

little over a month when the authorities found out, but notes taken

during an earlier credible fear interview suggest that she was five

months pregnant. The immigration judge also found a discrepancy as

to the reasons given by Lin for his detention by the authorities.

Lin did not mention during his credible-fear interview any concern

about his girlfriend being forced to have an abortion or fear that

either or both of them would be forcibly sterilized at a later

date.    The only fear Lin expressed at that time about returning to


                                 -5-
China concerned the punishment he might face for his failure to pay

the   fine.     Later,   however,   during     direct   examination        at   the

hearing, Lin expressed a fear of forced sterilization should he

return to China.      He also testified that he fled China because he

feared further beatings based on the beating he says he received by

Chinese authorities when he refused to divulge the whereabouts of

his girlfriend for fear she would be forced to have an abortion.

Also noted by the immigration judge was a discrepancy about the

duration of detention:      Lin reported the detention as lasting two

days during the asylum interview but said it was four days on

direct examination during his hearing before the immigration judge.

Lin also reported being beaten with an electric baton in his asylum

interview, but did not mention until his hearing that he had been

injured and hospitalized due to the beating.

      The immigration judge also noted the unexplained discrepancy

in why Lin originally claimed to have been arrested on January 5,

2003, but then later testified that he was actually arrested on

March   30,   2003.      Similarly,    the    immigration      judge   noted      a

discrepancy between Lin’s application for asylum and his asylum

interview concerning the date he left China.                June 20, 2004, was

the date given at the asylum interview, but October 20 2003, is the

date Lin gave in his asylum application.             Lin has also submitted

contradictory    evidence    regarding       the   events    that   took    place




                                      -6-
subsequent to his arrest in China and prior to his arrival in the

United States.

     Based on these multiple discrepancies, the immigration judge

found that Lin had failed to meet his burden of proof with regard

to his asylum application.      Because Lin failed to meet the burden

of proof for asylum, he was also unable to meet the more stringent

standard    for   withholding   of   removal.      Rodriguez-Ramirez     v.

Ashcroft, 398 F.3d 120, 123 (1st Cir. 2005) (finding that because

the burden of proof necessary to establish an asylum claim is lower

than the burden of proof required to prevail on a withholding of

removal claim, “the BIA’s rejection of the petitioner's asylum

claim, if sustainable, sounds the death knell for his counterpart

claim for withholding of removal”).

     Lin appealed the denial of his applications to the Board of

Immigration Appeals, which affirmed on the ground that the adverse

credibility finding was not clearly erroneous.           The Board decision

focused primarily on the discrepancies concerning various dates,

such as when Lin left China, when he was arrested, and the date on

which his girlfriend’s pregnancy was discovered by the authorities

as well as the circumstances surrounding the disclosure of the

pregnancy    to   the   authorities.       The   Board    also   noted   the

inconsistencies in Lin’s statements concerning the events that took

place after he was arrested and his activities and whereabouts




                                     -7-
prior to entering the United States.                    Decision of the Board of

Immigration Appeals, July 25, 2007.

      Lin petitions this Court for review of the Board’s decision.

He contends that the adverse credibility finding was not supported

by substantial evidence.            We review the Board’s findings of fact

under a substantial evidence standard, under which the agency’s

findings are conclusive unless any reasonable adjudicator would be

compelled to conclude to the contrary. We review the entire record

to   assess      whether    the    findings      are    supported   by    substantial

evidence.      Where the Board adopts the immigration judge’s ruling,

but also engages in discussion of its own, as here, we review both

decisions.       Hem v. Mukasey, 514 F.3d 67, 69 (1st Cir. 2008).                Under

the deferential substantial evidence standard, we consider whether

the agency’s ruling is supported by “reasonable, substantial and

probative evidence on the record as a whole.”                        INS v. Elias-

Zacarias, 502 U.S. 478, 481 (1992).                    Upon review of the entire

record, we hold that substantial evidence supports the findings of

the immigration judge as affirmed by the Board of Immigration

Appeals.      The discrepancies are well documented in the immigration

judge’s    decision        and    the   record    does    not    compel   a   contrary

conclusion.

      Lin also contends that the Board violated its scope of review

because     it    impermissibly         engaged    in     fact    finding     when   it

“determined that Lin originally claimed to have been arrested on


                                          -8-
January 5, 2003, but then later testified that the event occurred

on March 30, 2003.”     Lin claims the immigration judge made no such

finding in her decision.      Petitioner’s Br. at 10.    Contrary to

Lin’s argument, however, the immigration judge explicitly found a

discrepancy when she said “in the asylum interview respondent

asserts he was arrested on January 5, 2003, as opposed to March 30,

2003, according to his direct testimony.”       Oral Decision of the

Immigration Judge at 11.      Accordingly, Lin’s argument concerning

impermissible fact finding by the Board fails.

     Lin also argues that his due process rights were violated

because the immigration judge did not clearly indicate that new

amendments to the REAL ID Act2 applied to Lin’s asylum application


     2
         The new language provides:

     Credibility determination. Considering the totality of
     the circumstances, and all relevant factors, a trier of
     fact may base a credibility determination on the
     demeanor, candor, or responsiveness of the applicant or
     witness, the inherent plausibility of the applicant’s or
     witness’s   account,   the   consistency   between   the
     applicant’s or witness’s written and oral statements
     (whenever made and whether or not under oath, and
     considering the circumstances under which the statements
     were made), the internal consistency of each such
     statement, the consistency of such statements with other
     evidence of record (including the reports of the
     Department of State on country conditions), and any
     inaccuracies or falsehoods in such statements, without
     regard to whether an inconsistency, inaccuracy, or
     falsehood goes to the heart of the applicant’s claim, or
     any other relevant factor.

8 U.S.C. § 1158(b)(1)(B)(iii); see also 8 U.S.C. §§ 1231(b)(3)(C)
&   1229a(c)(4)(C)   (credibility   determination   for   removal
proceeding).

                                  -9-
and yet the Board, on appeal, explicitly applied the provisions.

The import of the amendments to the REAL ID Act is to eliminate the

“heart of the claim” rule and instead to rely on a “totality of the

circumstances” rule in making credibility determinations.      The

change allows the immigration judge to make credibility findings

based on all the evidence – not just evidence that goes to the

“heart” of the petitioner’s claims.     See Castañeda-Castillo v.

Gonzales, 488 F.3d 17, 23 n.6 (1st Cir. 2007) (en banc) (under Real

ID Act “fact-finder is entitled to draw the falsus in omnibus

inference based on inaccuracies, inconsistencies, or falsehoods,

without regard to whether they go to the heart of the applicant's

claim,” although the amendment would not have changed result in

case at bar) (internal quotation marks and punctuation omitted);

Chen v. United States Att'y Gen., 454 F.3d 103, 106-07 n.2 (2d Cir.

2006) (per curiam) (in case in which Real ID Act inapplicable,

stating that new provision would seem to overrule certain Second

Circuit credibility determination rules); Chen v. United States

Att'y Gen., 463 F.3d 1228, 1233 (11th Cir. 2006) (applying Real ID

Act; rejecting argument that discrepancy was trivial); Jibril v.

Gonzales, 423 F.3d 1129, 1138 n.1 (9th Cir. 2005) (opining that if

Real ID Act applied to the case, it would change result dictated by

Ninth Circuit's heart of the claim rule); In re J-Y-C-, 24 I. & N.

Dec. 260, 265 (BIA 2007) (not necessary under Real ID Act that




                               -10-
inconsistencies relied on in credibility determinations go to the

heart of the claim).    But see Kadia v. Gonzales, 501 F.3d 817, 821-

22 (7th Cir. 2007) (in case in which Real ID Act not applicable,

expressing    skepticism     that   Real    ID    Act    revives   “discredited”

doctrine of falsus in uno, falsus in omnibus).

     Consequently, we may not reverse the Board’s decision on the

ground that the inconsistencies it relied on in affirming the

adverse credibility do not go to the “heart” of Lin’s claim.

However, the immigration judge found Lin’s testimony not credible

with regard to several facts that “go to the heart” of Lin’s asylum

claim.   Oral Decision of the Immigration Judge at 8, Mar. 20, 2006.

Therefore, Lin’s application fails to meet the necessary burden

under either the new, more-stringent standard of the REAL ID Act

amendment that allows the immigration judge to assess credibility

based on every fact put forth by the applicant in support of his

application or under the former “heart of the claim” standard that

requires the immigration judge to look only to those facts central

to the claims in the application.                  Accordingly, even if the

immigration    judge   did    not   apply        the    new   “totality   of   the

circumstances” language from the REAL ID Act amendments, and we

have no reason to believe that she did not,3 Lin suffered no


     3
      The immigration judge is entitled to a presumption of
regularity in her rulings such that the failure to explicitly
mention that the REAL ID Act applied to the application does not
violate Lin’s due process rights. Enwonwu v. Gonzales, 232 Fed.
Appx. 11, 15 (1st Cir. May 10, 2007) (no due process violation

                                     -11-
prejudice from the immigration judge’s reliance on the “heart of

the claim” standard for assessing credibility.

     For the foregoing reasons, the petition is denied.




where presumption of regularity attaches to agency action absent
petitioner putting forth “concrete evidence” to the contrary);
McLeod v. INS, 802 F.2d 89, 94-95 & n.8 (3d Cir. 1986) (same).

                              -12-
