                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                    No. 09-1548
                                   _____________

                                 QIAO LIN WANG,
                                              Petitioner

                                           v.

                ATTORNEY GENERAL OF THE UNITED STATES,
                                                     Respondent

                      ___________________________________

                         On Petition for Review of an Order
                        of the Board of Immigration Appeals
                             Agency No. A200-039-864
                        Immigration Judge: Eugene Pugliese
                      __________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   June 11, 2010

       Before: AMBRO, CHAGARES, and GREENAWAY, JR., Circuit Judges.

                           (Opinion filed: August 23, 2010)
                                 ________________

                                      OPINION
                                  ________________

CHAGARES, Circuit Judge.

      Qiao Lin Wang petitions this Court to review a final order of removal issued by the

Board of Immigration Appeals (“BIA”). An Immigration Judge (“IJ”) denied her
application for asylum, withholding of removal, and protection under the Convention

Against Torture (“CAT”). The BIA dismissed her appeal. For the reasons set forth

below, we will grant the petition for review, vacate the BIA’s order, and remand to the

BIA for further proceedings.

                                              I.

       Because we write solely for the benefit of the parties, we recite only the essential

facts. Wang, a native and citizen of the People’s Republic of China, entered the United

States in Brownsville, Texas, on July 26, 2005. The Immigration and Naturalization

Service served her with a notice to appear charging her as inadmissable pursuant to

section 212(a)(6)(A)(i) of the Immigration and Nationality Act, which provides that “[a]n

alien present in the United States without being admitted or paroled, or who arrives in the

United States at any time or place other than as designated by the Attorney General, is

inadmissible.” Wang conceded the charge and applied for asylum, withholding of

removal, and protection under the CAT based on China’s family planning policy. She

moved for, and was granted, a change of venue to Immigration Court in New Jersey.

       Wang testified as follows in support of her application at a February 9, 2007

hearing before the IJ. In 2004, she and her then-boyfriend (hereinafter referred to as her

“husband”)1 had a traditional marriage ceremony in China, and the two began living

together thereafter. Their marriage was not legally recognized because they were both



       1
           Wang and her husband were subsequently married in the United States.

                                              2
under the minimum marriage ages of twenty (for a woman) and twenty-two (for a man).

Because Wang and her husband were not lawfully married, their cohabitation was illegal.

After a neighbor reported their cohabitation to the authorities, family planning officials

required Wang to submit to examinations to determine whether she was pregnant. A

December 3, 2004 examination revealed that Wang was pregnant, and she was forced to

undergo an abortion that same day. She was also fined, told that she was not permitted to

have any children for two years, and ordered to return to the hospital to have an

intrauterine device (“IUD”) implanted one month after the abortion. To avoid the IUD

insertion, Wang went to stay with her aunt in another village. Wang eventually fled

China for the United States.

       According to Wang’s Form I-589, family planning officials searched for Wang

after she fled. They spoke with her husband and threatened to sterilize him unless he

informed them of Wang’s whereabouts. Wang claimed that her husband then lost his job

because family planning officials told his supervisor that he violated the family planning

policy. Wang alleged that, as a result of these events, her husband joined her when she

left China for the United States.

       In support of her claim, Wang submitted a receipt, dated January 28, 2005,

reflecting payment of a two-thousand yuan fine for being “pregnant without permission.”

Joint Appendix (“JA”) 198. She also submitted letters from her father and aunt

corroborating her testimony. In addition, the IJ entered into the record a copy of the 2005



                                              3
State Department Country Report on Human Rights Practices for China, which notes that

“to delay childbearing, the law sets the minimum marriage age for women at 20 years and

for men at 22 years. It continued to be illegal in almost all provinces for a single woman

to have a child.” JA 115.

       The IJ held that Wang failed to meet her burden of proof, primarily because she

did not produce her husband as a corroborating witness. The IJ also held that Wang was

required to corroborate her testimony that China did not permit unmarried people to

cohabit. The BIA dismissed Wang’s appeal because “she did not provide corroborative

evidence from her husband, who is a key figure in her asylum claim and a witness to

many of the alleged incidents of past harm.” JA 3. The BIA further concluded that

Wang’s CAT claim failed because she had not alleged that she had been tortured. This

petition for review followed.

                                            II.

       We have jurisdiction to review the BIA’s final order of removal under 8 U.S.C. §

1252. Our power of review extends to only the BIA’s decision. Abdulai v. Ashcroft, 239

F.3d 542, 554 (3d Cir. 2001). However, when the BIA adopts the IJ’s findings and

discusses some of the bases for the IJ’s opinion, we review both decisions. See Xie v.

Ashcroft, 359 F.3d 239, 242 (3d Cir. 2004). We review legal conclusions de novo.

Toussaint v. Att’y Gen., 455 F.3d 409, 413 (3d Cir. 2006). We review findings of fact to

determine whether they are supported by substantial evidence; such findings are



                                             4
conclusive “unless a reasonable adjudicator would be compelled to arrive at a contrary

conclusion.” Camara v. Att’y Gen., 580 F.3d 196, 201 (3d Cir. 2009) (citations omitted);

see also 8 U.S.C. § 1252(b)(4)(B) (“[T]he administrative findings of fact are conclusive

unless any reasonable adjudicator would be compelled to conclude to the contrary.”).

Furthermore, “[n]o court shall reverse a determination made by a trier of fact with respect

to the availability of corroborating evidence . . . unless the court finds . . . that a

reasonable trier of fact is compelled to conclude that such corroborating evidence is

unavailable.” 8 U.S.C. § 1252(b)(4); see also Sandie v. Att’y Gen., 562 F.3d 246, 252 (3d

Cir. 2009).

       Asylum allows an alien who is otherwise subject to removal to stay in the United

States because he or she qualifies as a refugee. Chukwu v. Att’y Gen., 484 F.3d 185, 188

(3d Cir. 2007). A refugee is a person who is unable or unwilling to return to his or her

country of nationality because of persecution or a well founded fear of persecution on

account of, inter alia, political opinion. 8 U.S.C. § 1101(a)(42)(A). “[A] person who has

been forced to abort a pregnancy or to undergo involuntary sterilization, . . . or has been

persecuted for . . . resistance to a coercive population control program, shall be deemed to

have been persecuted on account of political opinion” and a person with a well founded

fear that he or she will be “forced to undergo such a procedure or subject to persecution

for such failure, refusal, or resistance shall be deemed to have a well founded fear of

persecution on account of political opinion.” Id. § 1101(a)(42)(B). To establish a well



                                                5
founded fear of persecution, an applicant must show a subjective fear as well as an

objectively reasonable possibility that he or she would suffer such persecution if returned

to his or her country. 8 C.F.R. § 1208.13(b)(2)(i).

       In addition to asylum, Wang sought withholding of removal and relief under the

CAT. An applicant for withholding of removal must show that there is a “clear

probability that he or she would face persecution if returned to his or her home country.”

Abdulrahman v. Ashcroft, 330 F.3d 587, 592 n.2 (3d Cir. 2003) (quotation marks

omitted). To qualify for relief under the CAT, a petitioner must prove that he or she is

more likely than not to be tortured in the country of removal. Id.

                                             III.

                                             A.

       We first address Wang’s argument that the BIA erred in concluding that she failed

to meet her burden of proof due to insufficient corroboration. The administrative record

contained, inter alia, the following evidence: 1) the receipt reflecting payment of a two-

thousand yuan fine for being “pregnant without permission,” 2) letters from Wang’s

father and aunt, corroborating the events to which she testified, and 3) the State

Department Report establishing that Chinese law sets a minimum marriage age and that in

China it is unlawful for a single woman to have a child.

       The IJ denied Wang’s asylum and withholding of removal claims mainly because

her husband did not testify. With respect to Wang’s husband, the IJ stated “the Court



                                              6
feels today that that is an essential witness and that he needed to be here today to testify

and to subject himself to cross-examination so that this case could be corroborated.” JA

34. The IJ, in his decision, did not mention Wang’s receipt for payment of the fine for

being “pregnant without permission” and dismissed out of hand the corroborating letters

from Wang’s family members because “these letters are from people who are not here . . .

. to be cross-examined in Court.” JA 34-35.

       The BIA began its analysis by observing that Wang did not provide corroborative

evidence in the form of her husband’s testimony. It noted that she submitted “a fine

receipt indicating that she paid two thousand yuan for ‘pregnant without permission’ and

letters from her father about her problems with the family planning committee.” JA 3.

Then, without further analysis, the BIA determined “[w]e cannot conclude that this

evidence is sufficient to meet her burden of proving . . . that she suffered past

persecution.” Id.

       It is unclear from this discussion to what extent the BIA relied upon the IJ’s

decision in reaching its own conclusion.2 The BIA did not indicate that it affirmed the



       2
         The exception to this conclusion concerns the IJ’s determination that Wang was
required to corroborate her testimony that it is unlawful for unmarried couples to cohabit
in China. The BIA did not adopt this portion of the IJ’s analysis, and so we need not
determine whether this finding constitutes error. However, we note that we have doubts
as to the reasonableness of requiring Wang to corroborate a fact that is hardly central to
her claim that, as an unmarried pregnant woman, she was subject to a forced abortion and
further persecution. There is no dispute that Wang was considered unmarried at the
relevant time period, and the record contains evidence supporting the fact that it was
illegal for unmarried women to become pregnant, including the fine receipt for being

                                              7
IJ’s decisions for the reasons the IJ set forth, and the BIA referred to evidence that the IJ

failed to address in his decision. However, the BIA did not conduct its own legal analysis

before affirming the IJ’s decision with respect to the corroboration issue. The BIA did

not explain why the proffered corroboration was insufficient, nor did it include any

discussion that demonstrates that it exercised its duty to analyze the issue.3 The BIA’s

failure to explain the basis for its decision that the corroborating evidence fell short of the

burden of proof makes it impossible for us to review meaningfully that decision. In such

circumstances, we must vacate the BIA’s decision and remand the matter “so that the BIA

can further explain its reasoning.” Kayembe v. Ashcroft, 334 F.3d 231, 238 (3d Cir.

2003) (holding that BIA’s generic assertion that petitioner failed to meet his burden of

proof, without further explanation, rendered BIA’s decision unreviewable); see also

Awolesi v. Ashcroft, 341 F.3d 227, 228-29 (3d Cir. 2003) (“While we give deference to

the decisions of the BIA . . . we cannot give meaningful review to a decision in which the

BIA does not explain how it came to its conclusion.”); Abdulai, 239 F.3d at 555 (vacating

and remanding when the BIA’s failure to explain its rationale made meaningful review



“pregnant without permission,” and the Country Report, which states that “it continued to
be illegal in almost all provinces for a single woman to have a child.” JA 115, 198.
       3
        We note that the IJ appears to have discounted the letters from Wang’s father and
aunt solely on the ground that they constitute hearsay. See JA 34-35 (“[T]hese letters are
from people who are not here . . . to be cross-examined in Court.”). We have held that an
IJ should not perfunctorily reject evidence simply because of its hearsay nature. Dia v.
Ashcroft, 239 F.3d 542, 554 (3d Cir. 2001). As noted, we are unable to discern whether
the BIA relied on this portion of the IJ’s analysis.

                                               8
impossible). Though we will not generally disturb a decision by the BIA merely because

it could have provided a more in-depth analysis, see Toussaint, 455 F.3d at 414 (quoting

Sevoian v. Ashcroft, 290 F.3d 166, 178 (3d Cir. 2002)), the agency must at least

sufficiently set forth its “reasoning in a manner that permits a reviewing court to discern

the ‘basis of its decision.’” Kamara v. Att’y Gen., 420 F.3d 202, 212 (3d Cir. 2005)

(quoting Dominguez v. Ashcroft, 336 F.3d 678, 680 (8th Cir. 2003)). Accordingly, we

will vacate the BIA’s order with respect to Wang’s asylum and withholding claims and

remand in order to give it an opportunity to do so.

                                             B.

       We conclude that the BIA’s CAT analysis suffers from the same deficiencies.

With respect to Wang’s CAT claim, the BIA stated, “the respondent has not established

that she more likely than not faces ‘torture’ as defined by regulation, upon removal.” JA

3. The BIA also noted that Wang had not claimed to have been tortured in the past, nor

did she assert that she would face torture upon return to China. It appears that the BIA

failed to consider whether Wang’s allegations of coercive family planning practices in

China constituted a claim of torture, but it is impossible for us to know with any certainty

what the BIA’s rationale was without further explanation. Thus, we will vacate the BIA’s

order regarding Wang’s CAT claim and remand.




                                             C.



                                              9
       In light of our decision to remand for further proceedings, we provide the

following guidance to the BIA.

       Before concluding that an applicant’s claim fails for lack of corroboration, an IJ is

required to conduct the following three-part inquiry: (1) identify the facts for which it is

reasonable to expect corroboration; (2) determine whether the applicant has corroborated

those facts; and if not, (3) analyze whether the applicant has adequately explained his or

her failure to provide the corroboration. Sandie, 562 F.3d at 252-53 (citing Abdulai, 239

F.3d at 554).4 “Additionally, the IJ must give the applicant notice of what aspects of the

applicant’s testimony need corroboration. If the applicant cannot produce corroborating

evidence, the IJ must also afford the applicant an opportunity to explain why.” Id. at 253.

The IJ did not engage in this inquiry and neither did the BIA. In these circumstances, we

are required to vacate the BIA’s decision and remand for further analysis. Toure v. Att’y

Gen., 443 F.3d 310, 323-24 (3d Cir. 2006); Abdulai, 239 F.3d at 555.

       The first step in the three-part inquiry requires the IJ to identify the specific facts

for which corroboration was sought. Rather than explaining which of the facts Wang

alleged required corroborating proof, the IJ here simply required Wang’s husband’s

appearance. See Abdulai, 239 F.3d at 554 (finding error for failure to articulate “what



       4
       The Attorney General argues that the Abdulai test does not apply to post-REAL
ID Act cases. Att’y Gen. Br. at 16. However, we have already held that “the REAL ID
Act does not change our rules regarding the IJ’s duty to develop the applicant’s
testimony, and in particular, to develop it in accord with the Abdulai steps.” Chukwu,
484 F.3d at 192.

                                              10
particular aspects of Abdulai’s testimony it would have been reasonable to expect him to

corroborate” (emphasis in original)). On remand, the BIA should be mindful of the

distinction between identifying specific aspects of an applicant’s testimony that require

corroboration and demanding the appearance of a particular witness. Furthermore, the

BIA should consider whether Wang was given notice of which specific facts needed

corroboration, as well as whether she was given an opportunity to explain her failure to

provide corroborating proof. See Sandie, 562 F.3d at 253.

                                            IV
                                             .

       For the foregoing reasons, we will grant Wang’s petition, vacate the BIA’s

decision, and remand for further proceedings consistent with this opinion.




                                            11
