                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 12-1596


ZHAO LIN CHEN,

                 Petitioner,

          v.

ERIC H. HOLDER, JR., Attorney General,

                 Respondent.



On Petition for Review of an Order of the Board of Immigration
Appeals.


Submitted:   April 9, 2013                   Decided:   July 2, 2013


Before DUNCAN, AGEE, and DAVIS, Circuit Judges.


Petition denied by unpublished per curiam opinion.      Judge Davis
authored a dissenting opinion.


Adedayo O Idowu, LAW OFFICES OF ADEDAYO O IDOWU, PLLC, New York,
New York, for Petitioner.    Stuart F. Delery, Acting Assistant
Attorney General, Shelley R. Goad, Assistant Director, Jennifer
R. Khouri, Trial Attorney, Office of Immigration Litigation,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      Zhao   Lin    Chen,      a    native       and    citizen   of    the   People’s

Republic of China, petitions for review of an order of the Board

of Immigration Appeals (“the Board”) dismissing his appeal from

the   decision      of   the       immigration         judge   (“IJ”)    denying   his

applications       for   asylum,      withholding         of   removal     under   the

Immigration and Naturalization Act (“INA”), and withholding of

removal under the Convention Against Torture (“CAT”).                         We deny

the petition for review because we conclude that substantial

evidence supports the Board’s decision.



                                             I

      In late 2008, the Department of Homeland Security (“DHS”)

issued a Notice to Appear to Chen charging him with removability

as an alien having entered the United States at an unknown time

and place without inspection.                Chen conceded removability, but

sought relief in the form of asylum, withholding of removal, and

protection under the CAT.

      In his application and during the proceedings before the

IJ, Chen testified to the following:                     He was born in 1983, is

not married, and does not have any children.                      In 2003, he broke




                                             2
up    with      his    girlfriend       and       became      depressed. 1        Shortly

thereafter, a friend introduced him to Christianity, and Chen

began to attend church.             The church was not in a fixed location

and    congregants         met     in   secret          for    fear   of      discovery,

“gather[ing] in [their] different members’ homes.”                           (J.A. 115.)

In May 2007, Chen was baptized.

      Chen recounted that on the evening of November 4, 2007, he

and other congregants were meeting at his friend’s house when

police officers “rushed into [their] gathering place, tor[e] out

[their] Bible[s] and destroyed things at [his friend’s] home

arbitrarily.”          (J.A. 309.)      Chen and the other congregants were

taken to the police station and interrogated.                         Chen refused to

answer    the      officers’     questions        and   was    “kicked    and     punched”

several times. 2        (J.A. 89.)      After four days, Chen’s parents were

able to collect enough money to secure his release.                                Before

leaving      the      police     station,     Chen      was    required      to   sign   a

      1
        Chen attached several supporting documents to his
application, including verification of identity, a notice from
his former employer in China indicating that he was terminated
from employment for participating in an underground church, a
certificate indicating he was a member of the Changle City
Christian Church, and a notice indicating that he had taken
courses at a church in New York City upon arriving in the United
States.
      2
       Chen testified that any remaining scars or other physical
marks from having been beaten and burned with a lit cigarette
had faded with time and were “not very noticeable now.”    (J.A.
111.)



                                              3
guarantee    letter       stating    that       he     would      not       participate      in

underground      church    activities         in      the    future.          When    Chen’s

employer was notified that he was involved in an underground

church, and had been “disturbing social order,” Chen lost his

job for “tarnish[ing] the reputation of the company.”                                   (J.A.

101.)

     Based on the events of November 4, Chen decided to leave

China.     His parents borrowed money from friends and relatives in

order to pay a snakehead a $75,000 fee to smuggle Chen into the

United   States. 3        Chen    testified        that     he    feared       that    if    he

returned    to   China     he    would   be      persecuted           for    his    Christian

faith.

     Chen indicated that since arriving in the United States in

January 2008, he had been working in Chinese restaurants, first

in New York and now in Virginia.                   He sends the money earned to

China to help pay off the debt his parents owe as a result of

borrowing money to pay the snakehead.                       Chen stated that he had

attended    church    in    New     York,       but   that       he    had    not    found   a

Chinese-speaking church in Virginia and that he did not have a

vehicle to help him locate a church.


     3
        Chen stated that he did not borrow money from the
snakehead and did not owe the snakehead any money.      Chen also
told the IJ that he made less than $100 a month while in China,
and that his father made the equivalent of $4 or $5 a day.



                                            4
      Chen’s      aunt   testified         in    support     of   Chen’s   application.

She stated that she met up with Chen after his arrival in New

York, and that Chen told her he had fled after being persecuted

for his faith.           She was aware that Chen continued to practice

Christianity       and     attend       church        activities,      having     observed

religious    pamphlets         in    his     residence      and     photographs    of   him

participating in religious events.

      In addition, Chen submitted an affidavit from his mother

stating    that     Chen    had       been      arrested     in   China    for    being    a

Christian.        She stated that she was aware of his underground

church activities, had observed that he was thinner and bruised

after having been detained by the police in November 2007, and

that she and Chen’s father had secured his release by paying

money to the police.            She also stated that she put some liquid

medicine     on    Chen’s       body       to       treat   his     injuries     from   the

detention.        Chen’s mother also corroborated that Chen had been

dismissed      from      his        employment        in    China     because     of     his

participation in the underground church.

      Chen also submitted an affidavit from the friend who had

introduced him to Christianity and invited him to participate in

the church.        The friend stated that Chen had been baptized in

May 2007, participated in church activities, and was present at

the home church meeting in November 2007 when police arrested

the   congregants.         The       friend’s        testimony    echoed    Chen’s      with

                                                5
respect    to     the     police    destroying        items      at    the    home,    taking

Bibles from congregants, and detaining them at a police station.

The friend stated that he was detained for a month, at which

time he was also required to sign a guarantee stating that he

would not participate in underground church activities in the

future.       The      friend     also   stated      that    the      Chinese   government

still wanted to arrest Chen.

     Lastly, Chen introduced the U.S. State Department’s 2009

International Religious Freedom Report for China, which referred

to the Chinese government’s sanctioning and close-monitoring of

underground, unauthorized churches.                     The report notes that in

some regions, police disrupt house meetings, detain congregants,

and interrogate individuals about their participation in home

churches.

     The IJ denied Chen the relief requested.                          In recounting the

evidence summarized above, the IJ noted that Chen’s testimony

was “very general” and “gave very few details as to” his church

activities        in     China     and   the       circumstances        surrounding         his

November      4    arrest,       subsequent        detention,         and    interrogation.

(J.A.   43,       46.)      The     IJ   concluded,         in   sum,       “that   [Chen’s]

testimony     itself       was    not    specific     and     detailed,       nor     was   the

corroborating evidence specific and detailed, as required under

the REAL ID Act, in the absence of the respondent’s testimony

being specific and detailed.”               (J.A. 47.)           “Accordingly,” the IJ

                                               6
found that Chen “ha[d] not met his burden of proof to show that

whatever       may        have   occurred     to    him    was     such     as    to     have

constituted past persecution, or even to show that [Chen] has

some reasonable possibility of future persecution.”                              (J.A. 47.)

The IJ next observed that “the REAL ID Act also speaks to the

credibility of a respondent’s testimony,” and concluded that as

a    whole,     the         “general    nature”      of        Chen’s     testimony       and

documentation led to the conclusion that Chen was not credible.

(J.A. 47-48.)             For these reasons the IJ found that Chen had not

met his burden of showing eligibility for asylum, or the more

substantial burden of demonstrating entitlement for withholding

of removal under the INA, and that Chen had not satisfied the

requirements for relief under the CAT.

       Chen appealed that decision to the Board, arguing that the

IJ     failed        to     provide     an    adequate          explanation       for    the

determinations            that   Chen   had   failed       to    provide    sufficiently

specific and detailed testimony, that he was not credible, and

that     his     corroborating          evidence         was     not    sufficient         to

independently satisfy his burdens.                        The Board concluded that

substantial          evidence     supported        the    IJ’s     decision       and,    in

particular, noted:

       Contrary to [Chen’s] arguments on appeal, the [IJ],
       before   making  his   adverse  credibility   finding,
       identified his particular concerns with the testimony
       of the respondent and his witness as well as the
       documentary evidence submitted below.     Specifically

                                              7
     the [IJ] provided particular examples of the general
     nature and the missing details from the testimony of
     both [Chen] and [his aunt].            He also described
     specific    problems   with    the    vagueness of   the
     documentary     evidence     and     identified  missing
     information before determining that [Chen] did not
     independently establish his claim on the basis of the
     corroborating evidence.     The [IJ] appropriately made
     his credibility determination based on the totality of
     the   circumstances     and,     specifically,  on   his
     determination that neither the testimony nor the
     corroborating evidence were specific and detailed.

(J.A. 3.)      The Board observed that the IJ had “considered the

limited   documentary        evidence     in    conjunction      with       [Chen’s]

incredible     testimony     in   determining    that    he    had   not    met    his

burden of proof.”       (J.A. 4.)       Because the Board concluded that

the IJ “correctly determined that the respondent had not met his

burden    to    demonstrate       eligibility      for    asylum,”         it     also

recognized     that   Chen    could     not    satisfy   the    more       stringent

standard required for withholding for removal.                  (J.A. 4.)          The

Board also held that Chen had failed to establish that it was

more likely than not that he would be tortured upon return to

China and therefore was ineligible for relief under the CAT.

Accordingly, the Board dismissed Chen’s appeal.

     Chen filed a timely petition for review in this Court, and

we have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1).



                                        II




                                         8
     Our review of the Board’s decision is highly deferential,

affording   broad—but   not   absolute—deference   to   the    agency’s

disposition.   See 8 U.S.C. § 1252(b)(4)(B)-(D); see also Haoua

v. Gonzales, 472 F.3d 227, 231 (4th Cir. 2007).         We uphold the

denial of an asylum claim “unless such a denial is ‘manifestly

contrary to the law and an abuse of discretion.’”             Zelaya v.

Holder, 668 F.3d 159, 165 (4th Cir. 2012) (quoting 8 U.S.C. §

1252(b)(4)(D)).

     When the denial of asylum is based on the [Board’s]
     conclusion that the applicant failed to meet his
     evidentiary burden for establishing eligibility, then
     we review for substantial evidence and must affirm a
     determination   of   statutory  ineligibility  by  the
     [Board]   unless   the   evidence   presented was   so
     compelling that no reasonable factfinder could fail to
     find eligibility for asylum.

Dankam v. Gonzales, 495 F.3d 113, 119 (4th Cir. 2007) (internal

quotation marks omitted).



                                  A

     The INA authorizes the Attorney General to confer asylum on

any refugee.   See 8 U.S.C. § 1158(a).     An applicant for asylum

bears the burden of proving that he holds refugee status, i.e.,

that he is “unable or unwilling to return to . . . [his] country

because of [past] persecution or a well-founded fear of [future]

persecution on account of,” inter alia, his religious beliefs.

8 U.S.C. §§ 1101(A)(42)(A), 1158(b)(1)(B)(1).      An applicant who


                                  9
has endured past persecution is entitled to a presumption of

having a well-founded fear of future persecution.                             8 C.F.R. §

208.13(b)(1).         The REAL ID Act of 2005 amended the INA, and

applies to Chen’s application.              Under the REAL ID Act,

      [t]he testimony of the applicant may be sufficient to
      sustain the applicant’s burden without corroboration,
      but only if the applicant satisfies the trier of fact
      that   the   applicant’s   testimony  is  credible,  is
      persuasive, and refers to specific facts sufficient to
      demonstrate that the applicant is a refugee.         In
      determining    whether   the  applicant  has   met  the
      applicant’s burden, the trier of fact may weigh the
      credible testimony along with other evidence of
      record.    Where the trier of fact determines that the
      applicant should provide evidence that corroborates
      otherwise credible testimony, such evidence must be
      provided unless the applicant does not have the
      evidence and cannot reasonably obtain the evidence.

8 U.S.C. § 1158(b)(1)(B)(ii).

      Chen attempted to satisfy his burden of proving eligibility

for   asylum   by     showing     that      he   had     been    subjected         to   past

persecution     on     account      of    his    Christian       faith       due   to    his

November 2007 detention.            Chen contends the Board’s decision is

not supported by substantial evidence because it was “based on

speculation     and     conjecture        rather      than    specific       and    cogent

reasoning”     as     to   what     relevant         information      Chen    failed     to

provide to the IJ.         (Opening Br. 11.)             Chen asserts that if the

Board   had     paid       closer        attention       to     his    testimony        and

corroborating       evidence,     giving        it    “sufficient      consideration,”

the Board would have held in Chen’s favor.                      (Id. at 11, 14)         And


                                            10
he    claims     that       neither     the     IJ     nor    the    Board       “cite[d]   any

examples of Petitioner’s testimony which were supposed to be too

general.”         (Id.       at    14.)         Chen    maintains         that    because    he

established past persecution, he is entitled to the presumption

of having a well-founded fear of future persecution and thus is

eligible for asylum.

       We have reviewed the Board’s decision and conclude that

substantial evidence supports its determination that Chen failed

to establish eligibility for asylum.                         As noted, under 8 U.S.C. §

1158(b)(1)(B)(ii), the IJ must assess, inter alia, whether an

applicant’s testimony “refers to specific facts sufficient to

demonstrate that the applicant is a refugee” and whether that

testimony is “credible.”                  Under 8 U.S.C. § 1158(b)(1)(B)(iii),

an    IJ   may    make       an    adverse      credibility          determination       after

considering “the totality of the circumstances, and all relevant

factors.”        While lack of detail, vagueness, and the like are not

specifically          delineated          in     the     credibility             determination

provision,       they       clearly     constitute       other       “relevant       factors.”

See Shrestha v. Holder, 590 F.3d 1034, 1040 (9th Cir. 2010)

(“[E]ven though lack of detail is not expressly listed as a

factor     that       may     be   considered          [under       the    REAL     ID   Act’s

credibility           determination             provision           at     8       U.S.C.    §

1158(b)(1)(B)(iii)], the pre-REAL ID Act practice of looking to

the   level      of    detail      of     the    claimant’s         testimony       to   assess

                                                11
credibility, see Singh-Kaur v. INS, 183 F.3d 1147, 1153 (9th

Cir. 1999), remains viable under the REAL ID Act as it is a

‘relevant factor.’”). 4      Under these provisions, either basis—

specificity    or   credibility—would     be    independently     adequate

grounds for determining that an applicant’s testimony fails to

satisfy his burden of proving eligibility for asylum.           A lack of

detail   and   generalized   testimony    can   be   both   a   factor    in

assessing whether an applicant has satisfied his or her overall

burden of proof and a factor in considering the credibility of

an applicant’s testimony.       While the two analyses are distinct,

they do sometimes overlap.

     In this case, the IJ’s adverse credibility determination

and the Board’s affirmance thereof flowed directly from their

overarching concerns about the lack of detail and the general,

vague nature of Chen’s testimony.        Contrary to Chen’s arguments,

the Board offered specific reasons for its determination, citing

to the IJ’s “particular concerns” and “specific examples” of how

Chen’s   evidence   was   too    generalized,    lacking    detail,      and

otherwise insufficient to provide credible evidence sufficient

to carry his burden of proof.        See J.A. 3.      The IJ thoroughly

     4
       Other courts have also recognized that lack of detail,
vagueness, and omissions are salient to an IJ’s credibility
determination. E.g., Dorosh v. Ashcroft, 398 F.3d 379, 382 (6th
Cir. 2004); Elzour v. Ashcroft, 378 F.3d 1143, 1152 (10th Cir.
2004); Capric v. Ashcroft, 355 F.3d 1075, 1085 (7th Cir. 2004).



                                   12
reviewed the evidence Chen did present in support of his case,

noted     specific    examples    of     why   that    evidence     fell   short    of

satisfying his burden, and the Board conducted its own review of

that decision and the record before dismissing Chen’s appeal.

In so doing, they offered “specific, cogent reason[s]” for the

determination, which was not “based on speculation, conjecture,

or   an   otherwise     unsupported       personal     opinion.”       See    Zuh    v.

Mukasey, 547 F.3d 504, 507 (4th Cir. 2008) (internal quotation

marks omitted).        Rather, the Board’s denial of Chen’s claim was

based on the totality of the record and Chen’s failure to prove

eligibility     for     asylum,    and    specifically       that    he    had     been

persecuted—as that term is understood in the context of asylum—

in   China. 5        Because    Chen’s    corroborating       evidence       did    not

overcome     this     factual     deficiency,         the   Board    appropriately




      5
       As we are often required to observe, “[p]ersecution is an
extreme concept that does not include every sort of treatment
that our society regards as offensive.”     Li v. Gonzales, 405
F.3d 171, 177 (4th Cir. 2005) (internal quotation marks
omitted);   see   also   id.   at  177-78    (delineating  cases
demonstrating this point, including ones where an applicant’s
detention, interrogation, beatings, and other deprivations did
not compel a conclusion of past persecution). While the events
Chen related are not justifiable, Chen failed to provide
adequate details from which the IJ could determine that those
events rose to the level of what our jurisprudence recognizes as
“persecution.”   As such, he failed to satisfy his burden of
demonstrating refugee status and, in turn, eligibility for
asylum.



                                          13
determined    that    the     totality       of   Chen’s    evidence    failed    to

satisfy his burden of proof. 6

      The Board’s decision pointed to specific concerns regarding

the   lack   of     detail    and     the     generalized    nature     of    Chen’s

testimony, and why Chen had not satisfied his burden of proving

refugee status.       Consequently, as the IJ stated and the Board

affirmed, Chen failed to “[meet] his burden of proof to show

that whatever may have occurred to him was such as to have

constituted past persecution, or even to show that [he] has some

reasonable possibility of future persecution.”                    (J.A. 47.)     The

IJ appropriately permitted Chen to present and develop his case

and   to   satisfy   his     burden    of    proof;   it    and   the   Board    then

considered    the     totality      of      the   evidence    before     them    and

concluded it was insufficient to meet Chen’s burden. 7                       We have


      6
       We disagree with the dissenting opinion’s characterization
that we are substituting our own rationale for that of the IJ
and the Board. Neither decision is a model of clarity, but they
are both grounded in Chen’s failure to present sufficient proof,
be it through testimony or corroborating evidence, to support
his claim.   That same deficiency in Chen’s testimony supported
the adverse credibility determination.        The IJ and Board
decisions invoked two permissible factors (sufficiency and
credibility)   in   considering—and   ultimately   denying—Chen’s
application.
      7
       The dissenting opinion is correct that an IJ has a role in
the development of the record. The IJ in this case did ask Chen
a series of questions to “determine a frame of reference,” which
“was not fleshed out on direct examination, nor was it fleshed
out on cross or redirect.”     (J.A. 73.)   At the outset of the
proceedings and throughout, the IJ took an active role in
(Continued)
                                         14
reviewed the Board’s decision as well as the record on which it

based its determination, and conclude the evidence is not “so

compelling that no reasonable factfinder could fail to find that

[Chen] had established eligibility for asylum.”                           Dankam, 495

F.3d at 124 (internal quotation marks omitted).                           Accordingly,

substantial evidence supports the Board’s conclusion that Chen

did   not   demonstrate        eligibility        for     asylum     based   on       past

persecution.

      Chen also contends that even if he did not establish past

persecution, he nonetheless demonstrated a well-founded fear of

future    persecution     on    account      of    his    religion.        The    “well-

founded     fear     of   persecution”            standard        consists       of     two

components: the subjective part requires the alien to present

“candid, credible, and sincere testimony demonstrating a genuine

fear of persecution,” and the objective component requires him

to    provide      “specific,     concrete        facts     that     would       lead    a

reasonable person in like circumstances to fear persecution.”

Ngarurih    v.   Ashcroft,      371   F.3d     182,      187-88    (4th   Cir.    2004).

Chen points to the same evidence of past persecution to satisfy




questioning Chen and asking for clarification.     We do not,
however, second guess the scope of the IJ’s intervention as we
are to uphold the Board’s decision unless it is manifestly
contrary to the law and an abuse of discretion.     See Lin v.
Holder, 611 F.3d 228, 235 (4th Cir. 2010).



                                          15
the   subjective         component   and     to     China’s      “well    known”

“persecution      [of]    underground    churches    and   participants”      to

satisfy    the    objective   component.      (Opening     Br.   16.)     Chen’s

argument fails because he relies on the identical evidence of

past persecution to support the subjective component of this

claim.     See Dankam, 495 F.3d at 123 (“[T]he subjective element

cannot generally be proved other than through the applicant’s

testimony.” (citing Camara v. Ashcroft, 378 F.3d 361, 369 (4th

Cir. 2004)); see also Li, 405 F.3d at 176-77 (citing Zalega v.

INS, 916 F.2d 1257, 1261 (7th Cir. 1990)) (stating that an alien

whose evidence of past persecution is insufficient to constitute

past persecution under the statute usually cannot rely on the

same evidence to show a well-founded fear of future persecution,

but must prove she has reason to believe she will be treated

worse upon return to her country).



                                        B

      Because substantial evidence supports the Board’s decision

that Chen has not met his burden for showing eligibility for

asylum, it necessarily follows that substantial evidence also

supports    its    decision   that   Chen    did   not   satisfy    the   higher

burden of demonstrating a “clear probability of persecution” on

account of religion for purposes of withholding of removal.                 See

8 U.S.C. § 1231(b)(3); see also Dankam, 495 F.3d at 124 (Because

                                        16
of   the   higher   standard   of    proof,      “[petitioner’s]     failure   to

establish eligibility for asylum necessarily means she cannot

demonstrate    eligibility     for   withholding      of   removal    under    the

INA.”).

      So, too, do we affirm the Board’s decision with regard to

Chen’s application for relief under the CAT, which “prohibits

the United States from returning any person to a country where

the person has demonstrated that it is more likely than not that

he will be tortured if returned to such country.”                    Zelaya, 668

F.3d at 161.        Chen bore the burden of proving eligibility for

relief under the CAT, and the Board concluded that he had not

“establish[ed] that he would more likely than not face torture

by or with the acquiescence . . . of the government of China

upon return to China.”         (J.A. 4.)         In light of the general and

vague record Chen developed to support his claim before the IJ,

substantial evidence supports that decision as well.



                                           III

      For the aforementioned reasons, Chen’s petition for review

is

                                                                         DENIED.




                                      17
DAVIS, Circuit Judge, dissenting:

      In this case the Attorney General asks us to accept an

adverse credibility determination based on missing details that

the Attorney General never mentioned before the IJ and that the

IJ never requested of petitioner. See infra n.6. But “[u]nlike

an Article III judge, an IJ is not merely the fact finder and

adjudicator, but also has an obligation to establish and develop

the record.” Islam v. Gonzales, 469 F.3d 53, 55 (2d Cir. 2006). 1

Indeed, an IJ is statutorily required to “interrogate, examine,

and   cross-examine   the   alien   and    any   witnesses.”   8   U.S.C.   §

1229a(b)(1).

      Consistent with this responsibility, “[a]n IJ must offer a

specific,   cogent    reason    for       rejecting   evidence,     whether

testimonial or documentary, because it lacks credibility.” Tassi

v. Holder, 660 F.3d 710, 720 (4th Cir. 2011) (emphasis added).

      1
       Accord Sankoh v. Mukasey, 539 F.3d 456, 467 (7th Cir.
2008) (“Unlike Article III courts, an immigration court is a
more inquisitorial tribunal. Congress has given immigration
judges the authority to ‘interrogate, examine, and cross-examine
the   alien   and  any  witnesses.’”)   (quoting   8  U.S.C.   §
1229a(b)(1)); Mekhoukh v. Ashcroft, 358 F.3d 118, 129 & n.14
(1st Cir. 2004) (recognizing an IJ’s duty “to fully develop the
record”). See also Richardson v. Perales, 402 U.S. 389, 410
(1971) (observing that an administrative law judge “acts as an
examiner charged with developing the facts”); Charles H. Koch,
Jr., 2 Administrative Law & Practice § 5:25 (3d ed.) (“The
administrative judge is pivotal to the fact-finding function of
an evidentiary hearing and hence, unlike a trial judge, an
administrative judge has a well-established affirmative duty to
develop the record.”).



                                    18
“Examples of specific and cogent reasons include inconsistent

statements,    contradictory    evidence,   and   inherently   improbable

testimony . . . .” Tewabe v. Gonzales, 446 F.3d 533, 538 (4th

Cir. 2006) (internal quotation marks omitted). We have never

said that lack of specificity, in and of itself, is enough for

an   adverse   credibility     determination--and    for   good   reason.

Because

         the list of circumstantial details can be expanded
         indefinitely, a legal standard that empowers an IJ
         or the [Board] to rule against a petitioner who
         fails to anticipate the particular set of details
         that the fact-finder desires (but does not request,
         through questions directed to the applicant) is no
         standard at all. It would enable the administrative
         decisionmaker to reject whichever applicants that
         fact-finder happens to disfavor.

Ming Shi Xue v. Bd. of Immigration Appeals, 439 F.3d 111, 123

(2d Cir. 2006) (emphasis in original) (quoting Jin Shui Qiu v.

Ashcroft, 329 F.3d 140, 151–52 (2d Cir. 2003)). Accordingly, we

should adopt the view of the Second Circuit and hold that

     in a proceeding wherein an alien seeks relief from
     removal, a finding of testimonial vagueness cannot,
     without   more,   support    an   adverse   credibility
     determination unless government counsel or the IJ
     first attempts to solicit more detail from the alien.

Li v. Mukasey, 529 F.3d 141, 147 (2d Cir. 2008). 2


     2
       The Second Circuit has emphasized that its rule is “not
tantamount to a duty to assist the counseled asylum applicant in
putting forward an affirmative asylum claim in the first place.”
Li, 529 F.3d at 148 n.5 (internal quotation marks omitted). Nor
do I favor any such rule. Rather, like the Second Circuit, I
(Continued)
                                    19
      We already impose a similar rule with respect to adverse

credibility determinations based on the lack of corroborating

evidence. See Lin-Jian v. Gonzales, 489 F.3d 182, 191 (4th Cir.

2007) (“The requirement that the applicant provide a reasonable

explanation     for    the   lack   of   corroborating     evidence   ‘presumes

that the IJ offers a petitioner an opportunity to explain the

absence.’”) (emphasis added) (quoting             Obale v. Attorney Gen. of

the United States, 453 F.3d 151, 163 (3d Cir. 2006)). And the

Second     Circuit’s   rule   on    testimonial   vagueness     is    consistent

with the statute governing adverse credibility determinations,

which permits an IJ to consider, inter alia, the “responsiveness

of   the    [asylum]    applicant,”       8   U.S.C.   §   1158(b)(1)(B)(iii)

(emphasis added); the statute says nothing about the specificity




simply would not sustain a result adverse to the applicant under
circumstances in which the IJ has carried out an ambush by
abjuring questions that are easily answered and that would no
doubt provide an adequate level of “specificity,” the absence of
which the IJ later relies on to reject the applicant’s claim to
asylum. As explained in text, such a practice is wholly
incompatible with the IJ’s responsibilities under law.

     The majority’s studied dismissiveness of this line of
Second Circuit authority is notable, considering Chen’s removal
proceedings commenced in New York. No doubt, he and his counsel
now wish he had remained there rather than relocating to
Virginia and moving to transfer venue.




                                         20
of an applicant’s testimony. 3 See, e.g., Holland v. Florida, 130

S.   Ct.     2549,      2562   (2010)     (observing       that,    under      “the

interpretive maxim inclusio unius est exclusio alterius,” “to

include one item . . . is to exclude other similar items”).

     Here, the adverse credibility determination was based on

Chen’s failure to provide details that neither the IJ nor the

government requested: “how many people were praying with [Chen]”

when he was arrested in China, “where they were praying,” “how

physically he and others were abused, what happened to other

church members who allegedly were with him,” and whether the

pastor     also   was   arrested.    J.A.     73.   Because   the   IJ   did    not

request these details, the adverse credibility determination “is

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

speculation,      conjecture,   or   an      otherwise   unsupported     personal
     3
         The   statute    also              permits      adverse    credibility
determinations on the basis of

          the demeanor [and] candor . . . 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 . . . .

     8 U.S.C. § 1158(b)(1)(B)(iii). The IJ relied on no such
considerations in this case.



                                        21
opinion,” and, thus, “it cannot be upheld.” Tewabe, 446 F.3d at

538. 4

         I invite the reader to turn back and reread pages 2 through

6 of the majority opinion. Is the narrative there incomplete or

incoherent? Is the reader left wondering what happened to Chen

that prompted his escape from China? Does the reader discern any

implausibility or telling gaps in the narrative? The answer to

each query is no. Notably, moreover, the majority has provided

only         a   cursory   summary   of    the   detailed   testimonial   and

documentary evidence that was before the IJ. 5 The documentary


         4
       The majority states that “the IJ’s adverse credibility
determination and the Board’s affirmance thereof flowed directly
from their overarching concerns about the lack of detail and the
general, vague nature of Chen’s testimony.” Ante, at 12. In
support of this statement, the majority asserts that “the IJ
must assess, inter alia, whether an applicant’s testimony
‘refers to specific facts sufficient to demonstrate that the
applicant   is  a  refugee’   and  whether   that  testimony  is
‘credible.’” Id. at 11 (quoting 8 U.S.C. § 1158(b)(1)(B)(ii)).
In fact, the standard cited by the majority applies only when
the applicant seeks to meet his burden of proof without
corroborating evidence. 8 U.S.C. § 1158(b)(1)(B)(ii). Moreover,
the cited language appears nowhere in the Board’s brief order
affirming the IJ’s decision. The Board “act[ed] on improper
grounds” by affirming on the basis of the flawed credibility
determination, and the majority is “powerless to affirm . . . by
substituting what it considers to be a more adequate or proper
basis.” SEC v. Chenery Corp., 332 U.S. 194, 196 (1947), quoted
in Crespin-Valladares v. Holder, 632 F.3d 117, 123 (4th Cir.
2011).
         5
       For example, the majority asserts simply that Chen “became
depressed” after breaking up with his girlfriend in 2003, ante,
at 2–3, but the evidentiary record is perfectly clear and
undisputed that the break-up had such a profoundly distressing
(Continued)
                                          22
effect on Chen that he contemplated suicide. Whatever the IJ may
or may not believe, we Americans are not alone in our
familiarity with the sometimes bleak lives of twenty-year-olds,
as Chen then was, at moments of deep emotional loss. It was at
this low point in Chen’s life that his friend, Jiang Zhi Yong, a
devout Christian who remains in China and whose affidavit is in
the record, introduced Chen to the underground, i.e., the
authentic, Christian experience. Chen’s mother’s affidavit
confirms this account. Chen was baptized four years later, in
2007.

     As he did with all of the confirmatory documentary
evidence, the IJ simply ignored this highly detailed and
specific aspect of Chen’s narrative. With all due respect for my
friends in the majority, their assertion that “[t]he IJ
thoroughly reviewed the evidence Chen did present in support of
his case,” ante, at 12–13, is demonstrably untrue. Rather than
assess and evaluate the whole record and reach a judgment as to
the overall persuasiveness of what was presented, the IJ simply
ticked off distinct items of evidence as if they comprised some
form of checklist, pausing at each simply to identify what the
particular item of evidence did not show. See, e.g., J.A. 44
(observing that Chen “lives in Virginia” but “had a difficult
time giving the address where he lives,” which was already in
the record and undisputed). The IJ concluded that Chen “ha[d]
not met his burden of proof to show that whatever may have
occurred to him was such as to have constituted past
persecution.” Id. at 74. The Board went further and declared
Chen’s testimony “incredible.” Id. at 4.

     The majority’s less-than-bold assertion that neither the
IJ’s oral decision (rendered immediately at the end of the
evidentiary hearing) nor the Board’s one-page decision affirming
the IJ “is a model of clarity,” ante, at n.6, is charitable in
the extreme. In any event, the majority’s faint-hearted attempt
to rest its denial of relief here on the ipse dixit of a merger
of principles related to insufficiency of evidence on the
merits, on the one hand, and credibility of documentary and
testimonial evidence, on the other hand, fares no better than
the Board’s attempt. Both are utter failures because the IJ
relied exclusively on a lack of credibility, as evidenced by his
reference to “whatever may have occurred to [Chen].” J.A. 74.
And the IJ offered no “specific, cogent reason”--in the face of
Chen’s testimony and corroborating documentary evidence--for his
(Continued)
                               23
evidence, in particular, is fulsome and is not in any manner

inconsistent with the testimonial evidence, nor is any of the

evidence   inherently    implausible    or   inherently      unbelievable.

Accordingly, we should grant the petition for review, vacate the

Board’s order, and remand for further proceedings.

     Indeed,   it   is   highly   doubtful   that   my   friends   in   the

majority disagree with what I have written; the law is clear.

This is made evident by the majority’s curious footnotes 5 and 6

and related text. See ante, at 13, and nn. 5 & 6. What is

revealed therein is that the majority does not believe Chen has

adduced sufficient evidence of past or future persecution, not

that his credibility is wanting. 6 Undeniably, this substitution




disbelief that Chen was arrested and                beaten    by   Chinese
authorities. See Tassi, 660 F.3d at 720.
     6
       Indeed, like my colleagues in the majority, even the
second-year law student who represented the government before
the IJ fully understood that this is a sufficiency of the
evidence case, not a credibility case. Her abbreviated closing
argument consisted entirely of the following:

          It   is   the   Government’s   position   that  the
     respondent has not met his burden of proof in
     establishing that he was persecuted for his religious
     beliefs. The respondent has not offered sufficient
     testimony detailing how or why he became a Christian,
     nor has he sufficiently testified as to any of his
     church activities. The respondent offered insufficient
     testimony regarding his detention and mistreatment by
     the Chinese police. Finally, the respondent did not
     provide   sufficient   corroboration   in   evidence  of
     religious    beliefs,   church    activities,   or   any
(Continued)
                                   24
of   a    reason   to   deny   Chen’s   petition   for   review   is   flatly

prohibited by binding circuit precedent. See Crespin-Valladares

v. Holder, 632 F.3d 117, 123 (4th Cir. 2011).

         Respectfully, I dissent.




         mistreatment by government officials in China. It is
         therefore   the  position   of   the  Government  that
         respondent is not eligible for relief for asylum.

         J.A. 49 (emphases added).



                                        25
