                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                February 25, 2010
                                                               Elisabeth A. Shumaker
                                                                   Clerk of Court
                     UNITED STATES COURT OF APPEALS

                              FOR THE TENTH CIRCUIT


    WU XIONG TAO,

                Petitioner,

    v.                                                   No. 08-9573
                                                     (Petition for Review)
    ERIC H. HOLDER, JR.,
    United States Attorney General,

                Respondent.


                              ORDER AND JUDGMENT *


Before O’BRIEN, PORFILIO, and TYMKOVICH, Circuit Judges.



         Petitioner Wu Xiong Tao, a native and citizen of the People’s Republic of

China, seeks review of an order entered by the Board of Immigration Appeals

(BIA) affirming the Immigration Judge’s (IJ) decision denying his application




*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
for asylum and restriction on removal (formerly known as withholding of

removal) and ordering him removed to China. 1 Exercising jurisdiction under

8 U.S.C. § 1252(a)(1), we deny the petition for review.

                                    Background

      Mr. Tao was arrested for illegally entering the United States from Mexico

in June 2005. After removal proceedings were commenced, Mr. Tao conceded

removability and applied for asylum and restriction on removal. Mr. Tao alleges

that he was persecuted by the government of China in two ways: (1) his wife, who

still resides in China, was forced to undergo an abortion in September 2000 after

Chinese family planning officials discovered she was pregnant with the couple’s

second child; and (2) he was arrested and imprisoned for a month in February

2005 for practicing Falun Gong, a religious practice the government of China

outlawed in 1999.

      A. Mr. Tao’s Hearing Testimony.

      Mr. Tao testified regarding his alleged persecution in China at a merits

hearing that was held before the IJ on May 14, 2007. As summarized in the brief

that he has submitted to this court, Mr. Tao testified as follows:

            Tao married his wife on February 15, 1995 in China. In this
      marriage his wife gave birth to a daughter on February 17, 1997.


1
      Although Mr. Tao also sought relief under the United Nations Convention
Against Torture (CAT), he has abandoned his CAT claim in this appeal, and it is
therefore waived.

                                         -2-
      Subsequently, in March 1997, Tao’s wife was forcibly inserted with
      an IUD insertion procedure, and additionally was required to attend
      regular gynecological checkups. . . . On September 26, 2000, when
      Tao’s wife reported for her scheduled checkup at the local birth
      control office without knowing that she was in effect pregnant, she
      was found to be pregnant in the local family planning office.
      Subsequently, the local birth control officials detained Tao’s wife
      and forced her to undergo an abortion procedure. . . .

             In July 2004, a coworker of Tao . . . introduced . . . him [to]
      Falun Gong, saying that Falun Gong would help cultivate [his] mind
      and benefit [his] health. In February 2005, the same coworker called
      Tao and asked him to resume practicing Falun Gong. Tao went to
      the coworker’s apartment, and . . . roughly about one hour after they
      started practicing, police came into the scene[.] The police ordered
      Tao and other Falun Gong fellows to squat . . . and handcuffed them
      one by one and took them to the police station. Tao testified that he
      was detained alone for a month. He was also questioned and beaten
      in the course of the detention. In the evening of the day of his
      release, a security guard secretly released him and asked him not to
      mention his name . . . . Tao then ran away to a friend’s home. He
      called home, and learned from his mother that the guard was his
      father’s friend. He said that after his escape the Chinese police
      searched his home from time to time until September 2006.

Aplt. Br. at 8-10.

      In its response brief, the government has accurately summarized the

inconsistencies and omissions in Mr. Tao’s hearing testimony:

             In contrast to his testimony before the Immigration Judge, Tao
      failed to mention his purported arrest [for practicing Falun Gong] on
      his I-217 form (information for travel document or passport). [The
      Border Patrol Agent] checked “no” in block 22 of the form, which
      inquires as to whether the alien has ever been “arrested, in prison or
      a public institution in the country of which [he is] a national, subject,
      or citizen.” When asked about this omission, Tao replied that he had
      mentioned his arrest. However, as the Immigration Judge
      subsequently verified, Tao’s I-217 contained otherwise accurate
      information regarding his family and background in China, including

                                         -3-
      the names of his mother (Lan Mei Zheng), father (Bin Wen), wife
      (Fhao Sho Ying Liu), and the nearest largest city to his birthplace
      (Fuzho).

              Tao testified that he came to the United States because “some
      people from [his] hometown” had advised him that it was a “country
      of democracy and of human rights” and it would provide “freedom
      for religion.” Tao was unable, however, to provide details regarding
      these people such as their names or where they lived. Instead, he
      vaguely testified that “it’s my hometown fellow” and “they say the
      United States is good.” He also testified that he was assisted in his
      trip to the United States by “snakeheads.”

             Tao testified that he traveled through Holland and Mexico
      en route to the United States. When questioned at the border,
      however, Tao stated, as indicated in his inadmissible alien report
      (I-213), that he had traveled through Singapore and Guatemala and
      then walked to Mexico. In response to this inconsistency, Tao
      testified that the report was “absolutely incorrect.” The I-213 further
      indicated that Tao claimed he had entered the United States “to seek
      employment and for fear of persecution in his country because of his
      religious beliefs.” Tao never mentioned China’s family planning
      policy or his wife’s alleged forced abortion in the course of his
      interview with the immigration officer. When asked why he had
      failed to mention his wife’s forced abortion to immigration officials
      at the border, Tao replied that “the reason I didn’t mention abortion
      is abortion will not result as a beaten up but practice Falun Gong . . .
      will result in beaten up by somebody.” However, Tao later recanted
      this claim and instead asserted that he had, in fact, mentioned the
      family planning policy at the border.

            Tao was unable to provide a document with a physician’s
      diagnosis or report of his wife’s abortion. He instead submitted an
      unauthenticated “abortion certificate.” He also submitted an
      unauthenticated copy of his wife’s IUD “Check Up Booklet.”

Aplee. Br. at 6-8 (record citations and footnote omitted; third and fourth

alteration in original).




                                         -4-
      B. Immigration Judge’s Decision.

      On September 28, 2007, the IJ entered a written decision denying Mr. Tao’s

application for asylum and restriction on removal. The IJ first found, based on

“the totality of the evidence, all the relevant factors presented, and the entire

record,” A.R. at 70, that Mr. Tao’s testimony regarding his wife’s alleged forced

abortion and his alleged imprisonment for practicing Falun Gong was not

credible. Specifically, the IJ found that Mr. Tao’s application and “other

evidence submitted into the record reveal several minor and major omissions

which taken together undermine [Mr. Tao’s] credibility as to the veracity of the

events which transpired and which [form] the basis of [his] claims.” Id.

      Among other deficiencies in Mr. Tao’s testimony, the IJ noted the

following: (1) although Mr. Tao testified that villagers from his home province

had told him that he could live in a free society in the United States, he could not

remember the names of any of the villagers or where they lived; (2) although the

Form I-213 regarding Mr. Tao’s border interview following his arrest indicated

that he had traveled through Singapore and Guatemala to get to the United States,

he testified that he had flown through the Netherlands and Mexico; (3) Mr. Tao

did not mention his wife’s alleged forced abortion during his border interview;

and (4) the Form I-217 regarding Mr. Tao’s border interview indicated that he

told the Border Patrol Agent that he had never been arrested in China. Id. at 71.




                                          -5-
      The IJ further found that Mr. Tao had “failed to meet his burden of proof to

show that he has suffered past persecution or that he has a well founded fear of

future persecution in China on account of his religion or of his political opinion

because he has failed to supply corroborating evidence, including authentication

of the documentary proof that his wife purportedly suffered a forced abortion, as

required by the regulations.” Id. at 71-72 (citing 8 C.F.R. § 1287.6 with a

parenthetical stating that it provides “that official foreign documents must be

attested by a foreign official and must be certified by a U.S. State Department

officer”). In support of this finding, the IJ noted that “counsel for [Mr. Tao]

appeared for several hearings and was aware that the documents had not been

authenticated, that it was [Mr. Tao’s] burden to do so, and [counsel] has offered

no explanation as to whether good faith efforts were in fact made to authenticate

his documents.” Id. at 72.

      C. Board of Immigration Appeals’ Decision.

      Mr. Tao appealed the IJ’s decision to the BIA, and, on September 3, 2008,

a single member of the BIA entered a brief order, pursuant to 8 C.F.R.

§ 1003.1(e)(5), dismissing Mr. Tao’s appeal and affirming the IJ’s decision. See

A.R. at 5-7. On October 28, 2008, to correct a defect in the service of the

September 3, 2008, order, the BIA vacated the order and issued a new order that

incorporated by reference the text of the September 3, 2008, order. Id. at 1-4.

For purposes of this appeal, we are therefore reviewing the brief order that was

                                         -6-
entered on September 3, 2008, as incorporated in the BIA’s October 28, 2008,

order.

         In the brief order, the BIA affirmed the IJ’s findings that Mr. Tao lacked

credibility and had failed to meet his burden of proof, stating that “the Board’s

conclusions upon review of the record coincide with those the Immigration Judge

articulated in his . . . decision.” Id. at 3 (quotation omitted). But this was not a

summary affirmance in accordance with 8 C.F.R. § 1003.1(e)(5), as the BIA then

set forth a detailed and independent explanation of the reasons for the affirmance:

         The Immigration Judge describes several specific reasons to find
         [Mr. Tao] lacks credibility. While [Mr. Tao] raises objections to
         some of these findings, overall they demonstrate a lack of credibility
         on the part of [Mr. Tao]. In particular, we note his argument that he
         did not mention his spouse’s alleged forced abortion at the time of
         his arrest in the United States, as the primary basis for his claim is
         his practice of Falun Gong. However, these same forms fail to
         mention that he was arrested and detained for 1 month due to his
         Falun Gong practice. The forms simply note that the respondent was
         not arrested. . . . While these discrepancies arise from the brief
         interviews conducted by border agents, we note that a great deal of
         personal information regarding [Mr. Tao] was recorded correctly.

                While these inconsistencies alone may not have been sufficient
         to support the Immigration Judge’s credibility determination, they do
         clearly cast doubt on [Mr. Tao’s] veracity. Further, the Immigration
         Judge did engage in some speculation regarding [Mr. Tao’s] ability
         to leave China under his own name, despite having escaped from
         prison and regarding why or if the Chinese government continued to
         search for [Mr. Tao] in China, despite being informed that he was in
         the United States. See Uanreroro v. Gonzales, 443 F.3d 1197, 1205
         (10th Cir. 2006) (stating that a finding that testimony is implausible
         may not be based upon speculation, conjecture, or unsupported
         personal opinion). These anomalies may be explicable, but they,
         along with [Mr. Tao’s] inability to recall the names of fellow

                                           -7-
      villagers, his generally vague testimony, and the discrepancies noted
      above, lead us to the conclusion that the Immigration Judge’s adverse
      credibility finding is not clearly erroneous. . . .

             Also, while corroborating evidence is not necessarily required
      of an applicant for asylum, here the testimony lacked credibility and
      [Mr. Tao] was provided ample time to obtain corroboration for his
      claim. . . . [Mr. Tao] has submitted little other support for his claim.
      [Mr. Tao] had almost 2 years to prepare for his hearing, his
      immediate family still lives in China, and the Immigration Judge
      cited specific documents that [Mr. Tao] could have been expected to
      produce or to have authenticated. . . . Given his lack of credibility
      and the lack of documentary support, [Mr. Tao’s] appeal will be
      dismissed and the [the Immigration Judge’s decision will be
      affirmed].

A.R. at 3-4.

                                      Analysis

      A. Standards of Review.

      When reviewing a brief order entered by a single member of the BIA under

8 C.F.R. § 1003.1(e)(5), we review the BIA’s decision as the final order of

removal but “consult the IJ’s opinion to the extent that the BIA relied upon or

incorporated it.” Sarr v. Gonzales, 474 F.3d 783, 790 (10th Cir. 2007). In

addition, “when seeking to understand the grounds provided by the BIA, we are

not precluded from consulting the IJ’s more complete explanation of those same

grounds.” Id. (quotation omitted).

      While we review legal determinations de novo, our review of factual

findings is governed by the substantial evidence standard. See Witjaksono v.

Holder, 573 F.3d 968, 977 (10th Cir. 2009). Thus, we must “look to the record

                                         -8-
for ‘substantial evidence’ supporting the agency’s decision: ‘[O]ur duty is to

guarantee that factual determinations are supported by reasonable, substantial and

probative evidence considering the record as a whole.’” Uanreroro v. Gonzales,

443 F.3d 1197, 1204 (10th Cir. 2006) (alteration in original) (quoting Elzour v.

Ashcroft, 378 F.3d 1143, 1150 (10th Cir. 2004)). An alien who is seeking to

overturn a factual finding at the circuit court level faces an uphill battle, however,

because “[t]he agency’s findings of fact are conclusive unless the record

demonstrates that ‘any reasonable adjudicator would be compelled to conclude to

the contrary.’” Ismaiel v. Mukasey, 516 F.3d 1198, 1204 (10th Cir. 2008)

(quoting 8 U.S.C. § 1252(b)(4)(B)) (further quotation omitted).

      “Credibility determinations are factual findings . . . subject to the

substantial evidence test.” Uanreroro, 443 F.3d at 1204. As a result, “we will

not question the immigration judge’s or BIA’s credibility determinations as long

as they are substantially reasonable.” Woldemeskel v. INS, 257 F.3d 1185, 1192

(10th Cir. 2001). But because an alien’s testimony alone, if credible, may support

an application for asylum or restriction on removal without corroboration,

see 8 U.S.C. §§ 1158(b)(1)(B)(ii), 1231(b)(3)(C); 8 C.F.R. §§ 208.13(a),

208.16(b), the IJ or BIA “must give specific, cogent reasons for disbelieving it.”

Sviridov v. Ashcroft, 358 F.3d 722, 727 (10th Cir. 2004) (quotation omitted).

Further, an adverse credibility finding “may not be based upon speculation,




                                          -9-
conjecture, or unsupported personal opinion.” Chaib v. Ashcroft, 397 F.3d 1273,

1278 (10th Cir. 2005) (quotation omitted).

      B. Adverse Credibility Finding.

      The BIA determined that the IJ’s adverse credibility finding was not clearly

erroneous, relying on the following factors: (1) the Form I-217 regarding

Mr. Tao’s border interview indicated that he told the Border Patrol Agent that he

had never been arrested in China; (2) Mr. Tao failed to mention his wife’s forced

abortion during his border interview; (3) there were “anomalies” in Mr. Tao’s

hearing testimony concerning his “ability to leave China under his own

name . . . and regarding why or if the Chinese government continued to search for

[him] in China, despite being informed that he was in the United States”;

(4) Mr. Tao was unable to recall the names of the “fellow villagers” who told him

that he should seek asylum in the United States; and (5) Mr. Tao’s testimony at

the hearing before the IJ was “generally vague.” A.R. at 3.

      We conclude that, on the whole, the BIA’s affirmance of the IJ’s adverse

credibility finding was substantially reasonable and that no reasonable adjudicator

would be compelled to conclude to the contrary. We are persuaded that both the

IJ’s and the BIA’s decisions are based on substantial evidence. The discrepancies

between the information contained in the documents prepared in connection with

Mr. Tao’s border interview and his testimony at the hearing before the IJ support

the IJ’s adverse credibility finding and the BIA’s affirmance.

                                       -10-
      As set forth above, the first discrepancy is the fact that the Form I-217

regarding Mr. Tao’s border interview indicated that he told the Border Patrol

Agent that he had never been arrested in China. The second discrepancy is the

fact that Mr. Tao failed to mention his wife’s alleged forced abortion during his

border interview. Although Mr. Tao argues in this appeal that he has plausible

explanations for these discrepancies and that the IJ and the BIA therefore erred in

relying on them, see Aplt. Br. at 17-20, plausible explanations are not enough to

reverse an adverse credibility determination. Instead, having been adjudged not

credible in the administrative proceedings, Mr. Tao has the burden to point to

evidence in the record showing that any reasonable adjudicator would be

compelled to conclude to the contrary on the credibility issue, see Uanreroro,

443 F.3d at 1204, and he has failed to make such a showing.

      (1) Beginning with the first discrepancy, we note at the outset that the IJ

misstated the record on this point. Specifically, the IJ stated that Mr. Tao

“admitted” at the hearing before the IJ “that he answered ‘no’ when giving an

answer for Block 22 to the preparer of his Form I-217 Travel Document at the

time of his arrest, indicating that he had never been arrested in China.” A.R.

at 57-58. To the contrary, however, as the government correctly notes in its

response brief, Mr. Tao testified “that he had mentioned his arrest.” Aplee. Br.

at 6 (citing A.R. at 158). Although Mr. Tao did not assert a claim of error in his

appeal to the BIA based on this misstatement of the record by the IJ, see A.R.

                                         -11-
at 16-32, and thus failed to exhaust such a claim before the BIA, see Sidabutar v.

Gonzales, 503 F.3d 1116, 1118 (10th Cir. 2007), we conclude that the BIA

nonetheless implicitly recognized and rejected Mr. Tao’s explanation regarding

the Form I-217 and therefore cured any error by the IJ. As the BIA explained:

      [The border interview] forms fail to mention that [Mr. Tao] was
      arrested and detained for 1 month due to his Falun Gong practice.
      The forms simply note that [Mr. Tao] was not arrested. . . . While
      [this] discrepanc[y] arise[s] from the brief interviews conducted by
      border agents, we note that a great deal of personal information
      regarding [Mr. Tao] was recorded correctly.

A.R. at 3. In other words, because the Form I-217 contained correct information

regarding other matters, the BIA rejected Mr. Tao’s claim in the brief that he

submitted to the BIA that the interpreter at his border interview had

“misunderstood him” regarding his arrest in China. See A.R. at 28.

      We conclude that the BIA’s decision on this point is substantially

reasonable and that no reasonable adjudicator would be compelled to conclude to

the contrary. As accurately summarized by the government in its response brief,

“the Immigration Judge verified that several other details from Tao’s I-217 form

were accurate, including the names of his mother (Lan Mei Zheng), father (Bin

Wen), wife (Fhao Sho Ying Liu), and the nearest largest city to his birthplace

(Fuzho).” Aplee. Br. at 16. Moreover, we note that the Form I-217 accurately

recorded Mr. Tao’s claim that he had practiced Falun Gong in China. See A.R.

at 203. As a result, we conclude that substantial evidence supports the BIA’s


                                        -12-
rejection of Mr. Tao’s claim that the omission of his arrest was a translation error.

      (2) With regard to the second discrepancy–the fact that Mr. Tao failed to

mention his wife’s alleged forced abortion during his border interview–Mr. Tao

does not dispute that he failed to disclose the abortion to the Border Patrol Agent.

Instead, as the BIA noted, Mr. Tao claims “that he did not mention his spouse’s

alleged forced abortion at the time of his arrest in the United States [because] the

primary basis for his [persecution] claim is his practice of Falun Gong.” Id. at 3.

Although this is a plausible explanation, especially in light of Mr. Tao’s

testimony that he fled China within months of his alleged arrest for practicing

Falun Gong, while the alleged forced abortion occurred several years earlier, it

does not compel a contrary conclusion on the credibility issue concerning the

abortion, as nothing in the administrative record precluded the IJ or the BIA from

rejecting it. Thus, we see no error with regard to the adverse credibility finding

on Mr. Tao’s forced abortion claim.

      (3) The other discrepancies go to the overall credibility of Mr. Tao. It is

doubtful Mr. Tao would escape China based on the advice of people he did not

trust. To testify that he could no longer identify the villagers with whom he

discussed his plans, absent an articulated reason why he should not disclose their

identities, seems unrealistic. The IJ could conclude this discrepancy contributed

to the overall credibility assessment and the ultimate determination that Mr. Tao’s

testimony lacked credibility.

                                         -13-
      The BIA’s observation about the vagueness of Mr. Tao’s testimony also

goes to Mr. Tao’s overall credibility, as well as to what the IJ and BIA perceived

to be a shifting story in support of Mr. Tao’s claims.

      In sum, the record as a whole supports the IJ’s credibility determination.

      C. Authentication Issue.

      The BIA also affirmed the IJ’s finding that Mr. Tao had failed to submit

sufficient corroborating documentary evidence to meet his burden of proof to

establish a persecution claim. As the BIA explained, Mr. Tao “had almost 2 years

to prepare for his hearing, his immediate family still lives in China, and the

Immigration Judge cited specific documents that [Mr. Tao] could have been

expected to produce or to have authenticated.” Id. at 4. In his decision, the IJ

relied on similar reasoning to support his finding that Mr. Tao had failed to

submit sufficient documentary evidence to satisfy his burden of proof, as the IJ

“note[d] that counsel for [Mr. Tao] appeared for several hearings and was aware

that the documents had not been authenticated, that it was his burden to do so,

and [counsel] has offered no explanation as to whether good faith efforts were in

fact made to authenticate [Mr. Tao’s] documents.” Id. at 72.

      The IJ also made a more specific finding to the effect that Mr. Tao had

failed to submit authenticated “documentary proof that his wife purportedly

suffered a forced abortion, as required by the [immigration] regulations.” Id.

(citing 8 C.F.R. § 1287.6). The regulation cited by the IJ was enacted in 2003,

                                         -14-
and it is a duplicated version of 8 C.F.R. § 287.6. See 68 Fed. Reg. 9845

(Feb. 28, 2003). The specific reason for the duplication is not set forth in the

Federal Register, however, and it appears that many courts refer only to § 287.6

when discussing authentication issues in immigration cases. See, e.g., Jiang v.

Gonzales, 474 F.3d 25, 29 (1st Cir. 2007) (noting that 8 C.F.R. § 287.6(b)

“provides a detailed procedure for the authentication of foreign official records

for use in immigration proceedings”); but see Zheng v. U.S. Att’y Gen., 2009 WL

2700165, at *4 n.1 (11th Cir. Aug. 28, 2009) (unpublished) (stating “that 8 C.F.R.

§ 287.6 applies to proceedings before an IJ, whereas 8 C.F.R. § 1287.6 applies to

proceedings before the BIA”). To avoid confusion, because the original version

of the regulation and the duplicated version are identical, we will likewise refer

only to § 287.6. 2


2
       Both regulations provide, in pertinent part, as follows:

       In any [immigration] proceeding under this chapter, an official
       record or entry therein [from a foreign country], when admissible for
       any purpose, shall be evidenced by an official publication thereof, or
       by a copy attested by an officer so authorized. . . . The attested
       copy, with the additional foreign certificates if any, must be certified
       by an officer in the Foreign Service of the United States, stationed in
       the foreign country where the record is kept.

8 C.F.R. §§ 287.6(b)(1)-(2), 1287.6(b)(1)-(2). Both regulations also contain
separate procedural requirements for official records emanating from countries
that are signatories to the “Convention Abolishing the Requirement of Legislation
for Foreign Public Document.” Id. at §§ 287.6(c), 1287.6(c). There is no
indication in the administrative record that the latter provisions are applicable to
                                                                        (continued...)

                                         -15-
      We agree with the IJ and the BIA that Mr. Tao failed to submit sufficient

corroborating documentary evidence to meet his burden of proof to establish a

persecution claim. In order to explain our holding, however, we must: (1) clarify

several matters that relate to the authentication issue; and (2) summarize the

extensive proceedings that took place in the immigration court pertaining to the

authentication issue which, inexplicably, neither Mr. Tao nor the government

have discussed in the briefs they have submitted to this court.

      First, we note that Mr. Tao is not arguing in this appeal that the IJ and the

BIA erred by failing to properly consider the documentary proof that he submitted

to support his claim that he was imprisoned in China for practicing Falun Gong. 3

As a result, that aspect of Mr. Tao’s persecution claim depends solely on the

credibility issue discussed above, and we do not need to discuss it in connection

with the authentication issue.

      Second, contrary to the BIA’s statement in its decision, our review of the

administrative record indicates that the IJ never “cited specific documents that

[Mr. Tao] could have been expected to produce.” A.R. at 4. Instead, as set forth

below, in the immigration court proceedings that took place before the merits

2
 (...continued)
this case, however, and we will therefore assume that China is not a signatory to
the specified convention.
3
      The documentary proof consisted of purported letters from Mr. Tao and his
wife discussing Mr. Tao’s alleged imprisonment in February 2005 for practicing
Falun Gong. See A.R. at 216, 221-22.

                                        -16-
hearing, the IJ raised only an authentication issue, and he raised the

authentication issue with regard to just one of the documents submitted by

Mr. Tao. That document was the purported “abortion certificate” that Mr. Tao

submitted to support his claim that his wife was forced to have an abortion in

September 2000. Id. at 469 (Item No. 10), 514-15. Thus, there are no issues in

this appeal concerning whether Mr. Tao failed to produce or authenticate any

other documentary evidence.

      Third, we note that, after raising the authentication issue, the IJ initially

assumed the responsibility for having the abortion certificate authenticated in

accordance with 8 C.F.R. § 287.6. Specifically, the administrative record shows

the following:

       a. At a hearing held on March 22, 2006, the IJ told counsel for Mr. Tao
that he personally would send the abortion certificate to the United States State
Department “with a letter from [himself] asking them to authenticate [the abortion
certificate].” A.R. at 98. Counsel for Mr. Tao then stated that “[w]e’ll appreciate
that, Your Honor, because [Mr. Tao] himself cannot have the abortion certificate
authenticated. The Chinese government won’t do it for us.” Id. at 99. The IJ
then set a hearing for July 26, 2006, stating that the purpose of the hearing would
be “[p]rimarily . . . to check on the status to see where we are with the documents
at issue.” Id. at 101.

       b. The IJ subsequently sent a letter dated April 12, 2006, to the United
States State Department. The letter stated as follows:

      Pursuant to 8 C.F.R. 287.6 which requires authentication of official
      records, counsel for the respondent has requested the authentication
      of the enclosed document by the U.S. Embassy in the People’s
      Republic of China. We have narrowed the original list of documents
      for which authentication is being sought to one item: the purported
      abortion certificate issued to respondent’s wife. As the verification

                                         -17-
      of this document may be dispositive of this case, your assistance will
      be greatly appreciated.

Id. at 442.

       c. At the hearing subsequently held on July 26, 2006, the IJ informed
counsel for the parties that he had sent his April 12, 2006, letter to the State
Department, but had not received a response to the letter. Id. at 106. The IJ
stated that he would “give them a bit more time and . . . follow up with [an] email
to State to see if they’re making headway on this or what they think the prospects
are [they’re] going to be able to do something for us.” Id. The IJ then set another
hearing for September 27, 2006.

       d. At the hearing on September 27, 2006, the IJ informed counsel for the
parties that he still had not heard back from the State Department in response to
his April 12, 2006, letter. Id. at 109-10. The IJ stated that he would “send an
email this afternoon up to State and give this thing a little push.” Id. at 111. The
IJ also set another hearing for December 26, 2006.

       e. The next hearing before the IJ was held on December 18, 2006. At that
hearing, the IJ informed counsel for the parties that he still had not heard back
from the State Department regarding the abortion certificate. Id. at 114. The IJ
stated that it would be necessary to go ahead and set the matter for a merits
hearing. Id. The IJ then scheduled a merits hearing before another IJ since he
was retiring.

      Fourth, the merits hearing was conducted before the second IJ on May 14,

2007. At the conclusion of the hearing, the second IJ noted that “authentication

of the abortion certificate” was still an “issue,” id. at 191, and he stated that

“[t]hat’s really a respondent’s burden,” id. After counsel for the government

pointed out that the first IJ “took it on himself to try to get” the abortion

certificate authenticated, id. at 193, the second IJ responded: “I’m not going to do

that because that’s not my job to do that,” id. Following a discussion of other




                                          -18-
matters, the second IJ then concluded the merits hearing with the following

statement:

         This case is continued until August 13 at 2:30, 2007. We’ll wait to
         see what the abortion certificate, the outcome of the authentication
         is. We’re going to allow counsel (indiscernible) telephonically that
         day. There’s no reason for her to return.

               Let’s let the respondent know we’re going to give him three
         more months to see whether or not the abortion certificate was
         authentic or not authentic.

Id. at 199. The second IJ then had the following exchange with counsel for

Mr. Tao and he also made a statement for the record about the authentication

issue:

         JUDGE TO MS. LI

                Q. All right. Ms. Li has the original of the abortion
         certificate. I’m not sure there’s a way to expedite the process or not.
         You’re experienced in this because you have a lot of cases back in
         New York, I think, if I remember right.

               A. That’s right, Your Honor.

         JUDGE FOR THE RECORD

               And let’s see if we can’t get [either] a thumbs up or a thumbs
         down of whatever it’s going to be so that we can make a decision
         based on the authenticity . . . .

Id.

         Finally, although the administrative record shows that a follow-up hearing

before the second IJ was in fact scheduled for August 13, 2007, id. at 523-24, and

subsequently rescheduled for August 20, 2007, id. at 522, there is no indication in

                                           -19-
the administrative record that a follow-up hearing actually took place in August

2007 or at any time prior to September 28, 2007, when the second IJ issued his

written decision. Instead, according to the administrative record, id. at 413-19,

the only additional thing that happened after the merits hearing pertaining to the

authentication issue is that on June 27, 2007, Mr. Tao’s counsel submitted the

following additional documents to the immigration court: (1) a purported letter

from Mr. Tao’s wife (who still resides in China) stating that she had attempted on

May 31, 2007, to have the abortion certificate authenticated by Chinese

government officials, but they had refused to authenticate the document, id. at

414; and (2) an unauthenticated “Certificate of Donghu Town Family Planning

Office” that purported to certify that Mr. Tao’s wife “having pregnancy by

violating policy, was given an abortion at Donghu Town Hospital on

September 28, 2000,” id. at 418. Neither the second IJ nor the BIA referred to

either of these documents in their decisions, however.

      As noted above, Mr. Tao’s counsel in this appeal (he was represented by a

different attorney in the administrative proceedings below) has not referred to any

of the above-described proceedings involving the abortion certificate in the brief

that he has submitted to this court. Likewise, counsel has not referred to the

additional documents that were submitted to the immigration court after the

merits hearing. Instead, Mr. Tao’s counsel simply argues in conclusory fashion

that “the IJ . . . unreasonabl[y] imposed a requirement for authentication [in]

                                         -20-
Tao’s case without considering any alternative mean[s] to establish[] the

authenticity of the supporting documents.” Aplt. Br. at 20. In support of this

argument, Mr. Tao’s counsel then goes on to correctly note that “one Court has

held, in the context of [an] asylum case, that an IJ may not dismiss evidence

based merely on an applicant’s ‘failure to authenticate it pursuant to

[§ 287.6].’” Id. at 21 (quoting Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391,

405 (2d Cir. 2005) (second alteration in original)). According to Mr. Tao’s

counsel, “[t]his rule . . . derives from the recognition that asylum applicants can

not always reasonably be expected to have an authenticated document from an

alleged persecutor and, therefore, the BIA’s authentication regulation is not the

exclusive means of authenticating record[s] before an immigration judge.” Id.

(quotation and citation omitted); see also Yan v. Gonzales, 438 F.3d 1249, 1256

n.7 (10th Cir. 2006) (noting that “[s]ince [the authentication procedures described

in 8 C.F.R. § 287.6] generally require attestation of documents by the very

government the alien is seeking to escape, courts generally do not view the alien’s

failure to obtain authentication as requiring the rejection of a document”) (citing

Cao He Lin, 428 F.3d at 404) (emphasis omitted)); Jiang, 474 F.3d at 29

(concluding that it was error for an IJ to “reject[] . . . documents solely because

they were not authenticated in strict conformity with [8 C.F.R. § 287.6]”); Khan

v. INS, 237 F.3d 1143, 1144 (9th Cir. 2001) (noting that “[d]ocuments may be

authenticated in immigration proceedings through any recognized procedure” and

                                         -21-
that “[t]he procedure specified in 8 C.F.R. § 287.6 provides one, but not the

exclusive, method” of authentication in immigration proceedings) (quotations

omitted)).

      Regardless of how the circuit courts have applied the authentication

requirement in 8 C.F.R. § 287.6, however, we conclude that the second IJ and the

BIA acted correctly in refusing to consider the purported abortion certificate as

competent evidence to support Mr. Tao’s persecution claim. Most importantly,

as set forth above, at the conclusion of the merits hearing, the second IJ granted

Mr. Tao an additional three months “to see whether or not the abortion certificate

was authentic or not authentic,” A.R. at 199, and a follow-up hearing was

scheduled to further explore the authentication issue. For reasons that are not

clear, however, the follow-up hearing never took place, and there is no indication

in the administrative record that Mr. Tao’s counsel made any efforts during the

three-month period or thereafter to utilize the authentication procedure in

8 C.F.R § 287.6 or to propose an alternative procedure. To the contrary, based on

the record before us, it appears that Mr. Tao’s counsel did nothing except submit

the purported letter from Mr. Tao’s wife and the alleged family planning

certificate to the immigration court in June 2007, but those documents were

likewise never authenticated and were thus of little or no use.

      In short, this is not a case where an alien has made a specific evidentiary

showing that he was unable to comply with the requirements of § 287.6 due to a

                                         -22-
lack of cooperation by government officials, either in this country or a foreign

country. Cf. Gui Cun Liu v. Ashcroft, 372 F.3d 529, 530, 531-33 (3d Cir. 2004)

(holding that two aliens from China should have been allowed to prove the

authenticity of two abortion certificates through means other than § 287.6 where

counsel for the aliens made a specific evidentiary showing that “attempts to abide

by the requirements of § 287.6 failed due to lack of cooperation from government

officials in [China]”). Having reviewed the issue de novo as a legal matter,

we therefore see no error pertaining to the authentication issue.

                                    Conclusion

      The petition for review is DENIED.


                                               Entered for the Court


                                               Timothy M. Tymkovich
                                               Circuit Judge




                                        -23-
