386 F.

3d 66

Zhou Yun ZHANG, Petitioner,

v.
UNITED STATES IMMIGRATION AND
NATURALIZATION SERVICE, Respondent.
No. 02-4252.

United States Court of Appeals, Second Circuit.

Argued: May 20, 2003.
Decided: October 5, 2004.

Hanbin (Henry) Wang, Law Offices of Hanbin (Henry) Wang, New York,
NY, for Petitioner.
Kathy S. Marks, Assistant United States Attorney (Sue Chen, Special
Assistant United States Attorney; Gideon A. Schor, Assistant United
States Attorney, on the brief), for James B. Comey, United States
Attorney, Southern District of New York, New York, NY, for
Respondent.
Before: KEARSE, STRAUB, and RAGGI, Circuit Judges.
Judge STRAUB dissents in a separate opinion.
RAGGI, Circuit Judge.

Zhou Yun Zhang, a citizen of the People's Republic of China, petitions for
review of the June 3, 2002 decision of the Board of Immigration Appeals
("BIA" or "Board") rejecting his claims for asylum and withholding of
deportation.1 In dismissing Zhang's appeal, the BIA agreed with the
Immigration Judge ("IJ") who presided over the underlying exclusion hearing
that Zhang had "not presented consistent, detailed or credible testimony" to
support his claim of persecution based on his opposition to China's family
planning policies. In re Zhang, unpublished decision at 2 (B.I.A. June 3, 2002)
(hereinafter "BIA Decision"). The BIA concluded that Zhang's testimony, of
"limited credibility and lacking in detail, combined with the few
[corroborating] documents" offered in evidence, were insufficient to establish

eligibility for relief. Id. Zhang submits that neither the adverse credibility
finding nor the sufficiency conclusion is supported by substantial evidence. We
disagree and, accordingly, deny the petition for review.
I. Factual Background
A. Zhang's Illegal Entry
2

On January 21, 1993, Zhou Yun Zhang attempted to enter the United States at
John F. Kennedy International Airport.2 Lacking proper documentation, Zhang
was denied admission and charged with excludability. See 8 U.S.C. 1182(a)
(6), (7) (Supp. V 1993). An exclusion hearing before an IJ was scheduled for
May 11, 1993.
B. Zhang's Initial Application for Asylum

On April 15, 1993, approximately one month before his scheduled hearing,
Zhang filed a pro se application for asylum and withholding of deportation,
asserting that he feared forcible sterilization by the Chinese government for his
past violation of China's family planning policies. He stated that he and his wife
had two children: a daughter born in 1988, and a son born in 1992. After the
birth of the Zhangs' son, family planning officials fined the couple for
exceeding China's one-child-per-family limit and gave them a deadline to
submit to sterilization. Zhang stated that he fled China to avoid forcible
sterilization.

Despite filing this application for relief from exclusion, Zhang failed to appear
for the scheduled May 11, 1993 hearing, prompting the Immigration and
Naturalization Service ("INS") to close his asylum/withholding application
without prejudice. Zhang's whereabouts were apparently unknown to the INS
for approximately five years when, on April 8, 1998, Zhang, through counsel,
requested to have his application reopened. The INS agreed and scheduled his
exclusion hearing for July 1, 1998.
C. Zhang's 1998 Amended Asylum Application

In anticipation of his July 1998 hearing, Zhang filed an amendment to his initial
asylum/withholding application. In that June 24, 1998 amendment, Zhang
reiterated that he fled China for fear of forcible sterilization and added that,
since his departure from China, government officials had forcibly sterilized his

wife.3 Providing further personal background to these events, Zhang stated that
he and his wife were married in a traditional ceremony in 1988, but because
they were both in their early twenties, i.e., below the legal age to marry, they
could not obtain a marriage certificate. As a result, when their daughter was
born the following year, local officials required the couple to pay a monetary
fine for not having a marriage certificate and for conceiving a child without
permission. When Zhang's wife again became pregnant in 1992, the couple
feared she might be required to submit to an abortion; accordingly, they
arranged for her to go into hiding with a relative who lived in another part of
the country. After Zhang's son was born on December 13, 1992, family
planning officials directed that his wife be sterilized. Because she was too weak
from childbirth to undergo the procedure, the officials ordered that Zhang be
sterilized instead. Zhang stated that he was frightened by the prospect of
involuntary sterilization and, therefore, fled to the United States, arriving on
January 21, 1993. He further asserted that when Chinese officials discovered
Zhang's departure, they imposed a monetary fine on his wife and then forcibly
sterilized her on June 5, 1993.
D. The Hearing Before the Immigration Judge
1. Zhang's Testimony and Evidence
6

On July 1, 1998, a hearing was held before an IJ on the excludability charges

against Zhang as well as on his application for political asylum and withholding
of deportation. Because Zhang, through counsel, conceded excludability at the
outset of the hearing, the focus of the proceeding was on Zhang's eligibility for
relief from exclusion.

As the sole hearing witness, Zhang, testifying through an interpreter in the Foo
Chow dialect, expanded on the events outlined in his 1993 asylum application
and the 1998 amendment to that application. He testified that he fled China
shortly after the birth of his second child because the government had notified
him to report for sterilization. Zhang stated that sometime after his arrival in the
United States, he spoke by telephone with his wife in China, who reported that
she had been forcibly sterilized. Although Zhang, on occasion, testified quite
clearly that the date of this procedure was June 5, 1993, other parts of his
testimony suggested that the alleged sterilization had occurred earlier.

Notably, in first recounting his telephone conversation with his wife, Zhang
reported her telling him that "not long after the giving birth of the baby" (the
birth having taken place on December 13, 1992) five or six people, some of

whom were government officials, had come to the house and told Zhang's wife
she would have to be sterilized. Hearing Tr. at 16. When his wife asked the
officials for more time because she was still weak from childbirth, they
purportedly refused her request and insisted that the procedure take place that
day. The IJ asked a series of questions to clarify the date of this conversation
between Zhang and his wife as it pertained to when the alleged sterilization had
occurred. Zhang replied that the conversation had occurred approximately one
month after his arrival in the United States. When the IJ asked if this meant the
conversation had taken place in February 1993, Zhang initially replied
affirmatively. Later, however, he placed the conversation sometime in July
1993, consistent with the June 5, 1993 date that was reflected on a sterilization
certificate offered in evidence.
9

In addition to this sterilization certificate, Zhang offered into evidence

documents that he testified were his notarial birth certificate, his marriage
certificate, a copy of his family's household register, issued on October 27,
1997, and a receipt for the cash fine paid by his wife after Zhang's departure
from China, dated May 12, 1993. Zhang testified that he had asked his wife to
send these documents from China and that he had received them on June 20,
1998, shortly before the hearing. Zhang also submitted a studio photograph of a
woman and two children, whom he identified as his wife and children. He
testified that the photograph had been sent to him sometime in 1996.
2. The Immigration Judge's Decision

10

At the conclusion of the hearing, the IJ rendered a detailed oral decision

denying Zhang's asylum and withholding application and ordering his exclusion
and deportation. In so ruling, the IJ identified Zhang's credibility as the central
factor in evaluating his persecution claim. The IJ observed that in some cases,
the only available evidence to support an applicant's subjective fear of
persecution may be his own testimony, and he correctly acknowledged that
such evidence can suffice to carry an applicant's burden "where the testimony is
believable, consistent and sufficiently detailed to provide a plausible and
coherent account of the basis for the applicant's fears." In re Zhang,
unpublished decision at 4 (Immig.Ct. July 1, 1998) (hereinafter "IJ Decision");
see Diallo v. INS, 232 F.3d 279, 285 (2d Cir.2000). In this case, however, the IJ
found that Zhang's account was not believable largely because of confusing,
inconsistent, and conflicting responses regarding the circumstances of his wife's
alleged involuntary sterilization. After carefully reviewing the troubling
inconsistencies, the IJ concluded, "[i]t is the opinion of the Court that this
seriously undermines the applicant's truthfulness and credibility before the
Court with regard to the forced sterilization of his spouse." IJ Decision at 8.

11

The court further noted that it gave little weight to Zhang's supporting
documentary evidence because it either conflicted with aspects of his own
testimony, as in the case of the sterilization certificate, or was not
contemporaneous. The IJ suggested that copies of the children's birth
certificates or photographs showing Zhang with his family in China would have
been more probative of his claimed family relationship than a family register
prepared or photograph taken after his departure. The IJ also noted that Zhang's
documentary corroboration did not include affidavits from persons with direct
knowledge of the events and circumstances giving rise to his claim, such as his
wife, certainly "the best person to offer information" regarding the alleged
forcible sterilization. Id.
E. The BIA Decision

12

Proceeding pro se, Zhang challenged the IJ's decision to the BIA, which
dismissed his appeal on June 3, 2002, holding that Zhang had not adduced
sufficient credible evidence to meet his burden of proof regarding eligibility for
asylum or withholding of deportation. Specifically, the Board concluded that
"important discrepancies" in the record identified by the IJ "are indicative of an
overall lack of veracity" on Zhang's part. BIA Decision at 1. Noting that the IJ
had also highlighted Zhang's failure to produce supporting documentation for
his claims, the BIA specifically reiterated that in cases where an applicant's
testimony may be the only evidence available to support an asylum claim, such
testimony can suffice if it is "believable, consistent, and sufficiently detailed to
provide a plausible and coherent account of the basis for his alleged fear." Id. at
2 (citing Diallo v. INS, 232 F.3d at 279). That, however, was not this case. The
BIA agreed with the IJ that Zhang had "not presented consistent, detailed or
credible testimony." Id. Thus, the BIA concluded, "[w]e simply cannot find the
testimony, of limited credibility and lacking in detail, combined with the few
documents, provide[s] sufficient evidence to meet the overall burden of proof."
Id.

13

This petition for review followed.

II. Discussion

14

A. Eligibility for Asylum and Withholding of Removal

15

In a world inhabited by more than six billion people, most of whom live in
societies that we in the United States would consider oppressive for a variety of
reasons, it is hardly surprising that thousands of refugees continue to present

themselves at our borders each year seeking asylum. To qualify for asylum
under the Immigration and Nationality Act ("INA"), a refugee must
demonstrate past persecution or a well-founded fear of future persecution on
account of "race, religion, nationality, membership in a particular social group,
or political opinion." 8 U.S.C. 1101(a)(42); see 8 U.S.C. 1158(a) (1993)
(codified at 8 U.S.C. 1158(b)(1), as of April 1, 1997); see also Jin Shui Qiu v.
Ashcroft, 329 F.3d 140, 148 (2d Cir.2003). Even if an applicant establishes his
eligibility for asylum, however, the Attorney General retains discretion whether
to grant the request. See Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d
Cir.2004).
16

A claim for withholding of deportation is factually related to an asylum claim,

but the applicant bears a heavier burden of proof to secure the former relief. He
must demonstrate that, if returned to his country, his life or freedom would in
fact be threatened on one of the protected refugee grounds. See 8 U.S.C.
1253(h)(1) (1993) (codified at 8 U.S.C. 1231(b)(3)(A), as of April 1, 1997).
If the applicant carries this burden, however, the Attorney General is obliged to
grant the relief sought. See Ramsameachire v. Ashcroft, 357 F.3d at 178.
Because the two forms of relief are factually related but with a heavier burden
for withholding, it follows that an applicant who fails to establish his eligibility
for asylum necessarily fails to establish eligibility for withholding. See id. at
178, 183; see also Abankwah v. INS, 185 F.3d 18, 22 (2d Cir.1999). That is
Zhang's case; accordingly, our discussion will focus on his claim for asylum.

17

Because refugees frequently leave their native countries under urgent

circumstances, the law recognizes that in some asylum cases, the only evidence
of persecution an applicant may be able to offer will be his own testimony.
Accordingly, such testimony, if credible, may be sufficient to sustain the burden
of proof. See 8 C.F.R. 208.13(a); see also Diallo v. INS, 232 F.3d at 285
(recognizing that "consistent, detailed, and credible testimony may be sufficient
to carry the alien's burden"). Nevertheless, where the circumstances indicate
that an applicant has, or with reasonable effort could gain, access to relevant
corroborating evidence, his failure to produce such evidence in support of his
claim is a factor that may be weighed in considering whether he has satisfied
the burden of proof. See Diallo v. INS, 232 F.3d at 285 (holding that "evidence
corroborating his story, or an explanation for its absence, may be required
where it would reasonably be expected"); see also Jin Shui Qiu v. Ashcroft, 329
F.3d at 153 (noting that rejection of asylum claim for lack of corroboration
requires IJ and BIA (1) to identify particular corroborating evidence that is
lacking, and (2) to show that such evidence was reasonably available to the
applicant).

18

B. Asylum Claims Based on a Spouse's Forcible Abortion or Sterilization

19

In 1996, Congress extended the definition of political refugee, for purposes of

asylum and withholding claims, to persons subjected to forced abortions or
sterilizations. See IIRIRA 601(a)(1), 110 Stat. at 3009-689 (amending 8
U.S.C. 1101(a)(42));4 see also Ke Zhen Zhao v. U.S. Dep't of Justice, 265
F.3d 83, 91-92 (2d Cir.2001) (discussing background to change in the law). The
following year, the BIA interpreted the new provision to permit the husband of
a woman subjected to forced abortion or sterilization to base his own asylum
claim on such past spousal persecution. See In re C-Y-Z-, 21 I. & N. Dec. 915,
918 (B.I.A.1997), cited in Jin Shui Qiu v. Ashcroft, 329 F.3d at 148; see also Ke
Zhen Zhao v. U.S. Dep't of Justice, 265 F.3d at 92. Indeed, a husband may
apply for asylum or withholding of deportation based on past spousal
persecution even when his wife remains in their native country. See In re C-YZ-, 21 I. & N. Dec. at 916.

20

This expansion of the concept of "refugee," coupled with the law's recognition
that some asylum claims cannot be corroborated, presents significant challenges
in distinguishing valid from invalid claims of persecution based on China's
coercive population control policies.5 After all, virtually any young,
undocumented Chinese male seeking to enter the United States can assert that
he is married and seeking asylum based on his spouse's forcible abortion or
sterilization. Some such claims may be true, even though the man can produce
no supporting documentation. Others may be bogus, although corroborated by a
host of meticulously forged documents. Such claims can present an almost
infinite variety of circumstances, from men whose claims of marriage and
persecution are entirely fabricated; to men whose wives did have documented
abortions or sterilizations, but not involuntarily; to men who use their wives'
involuntary abortions or sterilizations as an excuse to abandon family
responsibilities.

21

Further complicating agency review of such claims is the reality that large
numbers of Chinese males annually flee their country in search of better
economic opportunity. See, e.g., Elisabeth Rosenthal, Chinese Town's Main
Export: Its Young Men, N.Y. Times, June 26, 2000, at A1 (reporting that 80%
of the male population between ages 20 and 40 had left the Chinese village of
Ting Jiang over a ten-year period). This economic motivation is certainly
understandable, indeed, historic, and the men's strong determination is
evidenced by the high costs many pay, both in terms of money and lives. See id.
(reporting that human smugglers are frequently paid as much as $70,000 per
person to make travel arrangements out of China);6 see also United States v.

Lee Peng Fei, 225 F.3d 167, 169-70 (2d Cir.2000) (detailing events leading to
deaths of ten Chinese nationals being smuggled into the United States aboard
the Golden Venture). Economic motives alone, however, cannot qualify an
alien for asylum pursuant to 8 U.S.C. 1101(a)(42); thus, men with such
motives may have an incentive to fabricate spousal persecution claims to
enhance the likelihood of their admission into the United States.
22

However difficult the problems of identifying legitimate spousal persecution

claims, we are obliged to defer to the BIA's interpretation of 1101(a)(42). See
Diallo v. INS, 232 F.3d at 285 (noting that pursuant to Chevron U.S.A. Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778,
81 L.Ed.2d 694 (1984), federal courts accord substantial deference to the BIA's
interpretations of the statutes and regulations that it administers). Thus, we
must apply the same substantial evidence standard of review to spousal
persecution claims that we apply to direct persecution claims.
C. Standard of Review

23

In reviewing asylum determinations, we defer to the factual findings of the BIA

and the IJ if they are supported by substantial evidence. See Wu Biao Chen v.
INS, 344 F.3d 272, 275 (2d Cir.2003) (per curiam). Under this standard, "we
will not disturb a factual finding if it is supported by `reasonable, substantial,
and probative' evidence in the record when considered as a whole." Id. (quoting
Diallo v. INS, 232 F.3d at 287). Indeed, we must uphold an administrative
finding of fact unless we conclude that a reasonable adjudicator would be
compelled to conclude to the contrary.7 See id. at 275-76 (citing INS v. EliasZacarias, 502 U.S. 478, 481 & n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)); see
also Ramsameachire v. Ashcroft, 357 F.3d at 177; Diallo v. INS, 232 F.3d at
287.

24

When a factual challenge pertains to a credibility finding made by an IJ and

adopted by the BIA, we afford "particular deference" in applying the
substantial evidence standard, Montero v. INS, 124 F.3d 381, 386 (2d
Cir.1997); see also Jin Shui Qiu v. Ashcroft, 329 F.3d at 146 n. 2, mindful that
the law must entrust some official with responsibility to hear an applicant's
asylum claim, and the IJ has the unique advantage among all officials involved
in the process of having heard directly from the applicant. A fact-finder who
assesses testimony together with witness demeanor is in the best position to
discern, often at a glance, whether a question that may appear poorly worded
on a printed page was, in fact, confusing or well understood by those who heard
it; whether a witness who hesitated in a response was nevertheless attempting
truthfully to recount what he recalled of key events or struggling to remember

the lines of a carefully crafted "script"; and whether inconsistent responses are
the product of innocent error or intentional falsehood. Reviewing courts have
long recognized, as Judge Frank observed, that "`a witness may convince all
who hear him testify that he is disingenuous and untruthful, and yet his
testimony, when read, may convey a most favorable impression.'" Arnstein v.
Porter, 154 F.2d 464, 470 (2d Cir.1946) (quoting Untermeyer v. Freund, 37 F.
342, 343 (C.C.S.D.N.Y.1889)), abrogated on other grounds, as recognized in
Heyman v. Commerce & Indus. Ins. Co., 524 F.2d 1317, 1319 (2d Cir.1975).
This is because a cold transcript contains only "`the dead body of the evidence,
without its spirit.'" Id. (quoting Sir John Coleridge in Regina v. Bertrand, L.R. 1
P.C. 520, 535 (1867)). It cannot reveal "`the look or manner of the witness: his
hesitation, his doubts, his variations of language, his confidence or
precipitancy, his calmness or consideration.'" Id. (quoting Regina v. Bertrand,
L.R. 1 P.C. at 535).
25

It is in this context that our statement in Secaida-Rosales v. INS, that an IJ's

adverse credibility finding "constitutes the beginning not the end of our
inquiry," 331 F.3d 297, 307 (2d Cir.2003) (internal quotation marks omitted),
must be understood. Precisely because a reviewing court cannot glean from a
hearing record the insights necessary to duplicate the fact-finder's assessment of
credibility, what we "begin" is not a de novo review of credibility, but an
"exceedingly narrow" inquiry, Melgar de Torres v. Reno, 191 F.3d 307, 313
(2d Cir.1999) (internal quotation marks omitted), to ensure that the IJ's
conclusions were not reached arbitrarily or capriciously, see Ke Zhen Zhao v.
U.S. Dep't of Justice, 265 F.3d at 86. Toward this end, we look to see if the IJ
has provided "specific, cogent" reasons for the adverse credibility finding and
whether those reasons bear a "legitimate nexus" to the finding. Secaida-Rosales
v. INS, 331 F.3d at 307 (internal quotation marks omitted); see also
Ramsameachire v. Ashcroft, 357 F.3d at 178. In short, our review is meant to
ensure that credibility findings are based upon neither a misstatement of the
facts in the record nor bald speculation or caprice.

26

Where the IJ's adverse credibility finding is based on specific examples in the
record of "`inconsistent statements'" by the asylum applicant about matters
material to his claim of persecution, or on "`contradictory evidence'" or
"`inherently improbable testimony'" regarding such matters, a reviewing court
will generally not be able to conclude that a reasonable adjudicator was
compelled to find otherwise. Diallo v. INS, 232 F.3d at 288 (quoting In re S-MJ-, 1997 WL 80984, at *729 (B.I.A. Jan. 31, 1997)). In such circumstances, the
court may not itself hypothesize excuses for the inconsistencies, nor may it
justify the contradictions or explain away the improbabilities. Its limited power
of review will not permit it to "reverse the BIA simply because [it] disagree[s]

with its evaluation of the facts." Jin Shui Qiu v. Ashcroft, 329 F.3d at 149
(internal quotation marks omitted).
D. The Record in Zhang's Case
27

1. Inconsistent Testimony as a Basis for Finding Zhang Not Credible

28

Applying these principles to Zhang's case, we conclude that the IJ's adverse
credibility finding, reiterated by the BIA, is supported by substantial evidence.
Certainly, we cannot conclude that no reasonable fact-finder could have failed
to credit his persecution claim. See Diallo v. INS, 232 F.3d at 287.

29

As Zhang himself acknowledges, in assessing credibility, the IJ apparently

excused numerous inconsistencies in the record that might be attributable to
typographical or translation errors.8 Nevertheless, he concluded that Zhang's
repeated inconsistent statements at the exclusion hearing regarding the
sterilization of his wife "seriously undermine[d][his] truthfulness and
credibility" with respect to his persecution claim. IJ Decision at 8.9 The BIA
concurred that "important discrepancies" in Zhang's account "are indicative of
an overall lack of veracity on the part of the applicant." BIA Decision at 1.10

30

The inconsistencies referenced by the BIA are apparent on the record. In

response to questions posed on direct examination, Zhang testified that his wife
was sterilized approximately one month after the birth of his second child,
which would have dated the sterilization sometime in January 1993. At the
same time, he stated that the date of sterilization was much later, on June 5,
1993.

31

Q. Aside from the fine [imposed after the birth of your second child], were
there any other problems?

32

A. In addition to the monetary penalty, one month after the kid was I mean,
the baby was born, my wife was taken for sterilization.

33

Q. When was your wife taken for sterilization?

34

A. Around June the 5th, '93.

35

Q. Didn't you earlier state that your child was born December 13, 1992?

36

...

37

A. Yeah, the second one is December 13th, '92.

38

Q. So your wife was not sterilized then one month afterwards, it was more like
six months. Isn't that correct?

39

...

40

A. No.

41

Q. When did they when did you first find out that they wanted to sterilize
your wife?

42

A. June the June the 5th.

43

Hearing Tr. at 11-12.

44

Later on direct examination, in recounting the circumstances under which

Chinese officials required his wife's sterilization, Zhang again testified in a way
that suggested that the forcible procedure occurred relatively soon after the
December 1992 birth of his second child. He stated that his wife was
confronted by a number of Chinese officials "not long after the giving birth
of the baby," but because "her health was very weak," she asked for more time,
and the officials refused, telling her, "No, there's no[ ] choice. You have to go
today." Id. at 16.

45

Zhang does not dispute that his wife's purported sterilization was critical to his
asylum claim and that it was reasonable to expect him to recall the time and
circumstances under which he learned of this event. Instead, he argues that his
testimonial discrepancies are less indicative of his lack of credibility than of
incompetent interpretation and his attorney's unfamiliarity with the case. This
argument, however, is entirely speculative and without support in the record. In
any event, Zhang must do more than offer a "plausible" explanation for his
inconsistent statements to secure relief; "he must demonstrate that a reasonable
fact-finder would be compelled to credit his testimony." Wu Biao Chen v. INS,
344 F.3d at 275.

46

In urging such a conclusion, Zhang asserts that the IJ acted too hastily in
assuming that the cited inconsistencies evidenced a lack of credibility. The

record is to the contrary. After counsel for both sides concluded their
examination, the IJ endeavored to clarify the ambiguity created by Zhang's
direct testimony regarding when his wife had purportedly been sterilized
relative to when he claimed first to have learned of the event. Nevertheless,
Zhang continued to provide inconsistent responses. He initially stated quite
clearly that he spoke with his wife in February 1993, which would necessarily
have placed the alleged sterilization before that date.
47

Q. And when you arrived here in January of '93, did you contact your wife?

48

A. Yes, I did.

49

Q. And when did you talk to her?

50

A. Yeah, around one month after my arrival in the United States.

51

Q. So sometime in February of '93?

52

A. Yes.

53

Q. Is that when she told you about this incident with the five five or six
government people coming to your wife's home?

54

A. Yes.

55

....

56

Q. .... Now, you stated that you contacted your wife in February of 1993 after
you arrived here in the United States.

57

A. Yes, in February.

58

Q. February of 1993, and this was about a month after you arrived in the United
States?

59

A. Yes.

60

Hearing Tr. at 37-39. In response to further questioning, however, Zhang stated

that his wife had not yet been sterilized at the time of the February

conversation. He reiterated that the procedure occurred months later, on June 5,

1993.
61

Q. And you told me that [the February conversation was] when she told you
about the sterilization. She had the birth of the child, and then the government
took her for sterilization?

62

A. Oh, not yet. At that point, not yet.

63

Q. What happened not yet?

64

A. Oh, at that point when I call my wife, she was not taken for the sterilization
yet.

65

Q. I see. When did when did it happen?

66

A. Yeah, around June the 5th, '93.

67

Q. When did you find out?

68

A. After one month of my arrival in United States, I call back and I learn that
the government has notify my family.

69

Q. So when were you notified that your wife was sterilized? When did you
learn your wife was sterilized?

70

A. After she was sterilized, that's when I call back, then I learn.

71

Id. at 39-40. When Zhang's counsel then asked his client to approximate the
month and year when his wife initially told him of her sterilization, Zhang
stated, for the first time, that their conversation took place sometime in July
1993. See id. at 40.

72

The cited inconsistencies were not the sort of "minor and isolated"
discrepancies so plainly immaterial to a persecution claim that no reasonable
fact-finder could use them as a basis for an adverse credibility ruling. Diallo v.
INS, 232 F.3d at 288. The purported sterilization of his wife was, presumably,
an event of major importance to Zhang, not only to his persecution claim but
also to his marriage. A fact-finder might reasonably expect him to have had a

clear recollection of when and how he learned such distressing information.

Thus, the fact that Zhang repeatedly testified that his wife told him of her
sterilization in February 1993, while he otherwise dated the procedure months
later, in June 1993, rendered his account of key events incoherent, raising
legitimate concerns about his veracity. Moreover, without having seen Zhang
testify, we cannot conclude that such concerns were necessarily dispelled by
Zhang's belated claim that his wife first told him of her sterilization in July
1993.
73

As already noted, it is not our task to see if Zhang's inconsistent statements can
somehow be reconciled. Neither do we weigh the inconsistencies for ourselves
to see if we would reach the same credibility conclusions as the IJ, who
actually observed Zhang testify, or the BIA. See Jin Shui Qiu v. Ashcroft, 329
F.3d at 149. We consider only whether, on the evidence adduced, a reasonable
adjudicator would be compelled to conclude, contrary to the IJ and BIA, that
Zhang provided a credible account of persecution. See Wu Biao Chen v. INS,
344 F.3d at 275. We hold that the record does not compel such a conclusion.
The cited inconsistencies qualify as "specific, cogent" reasons, bearing a
"legitimate nexus" to the IJ/BIA findings that Zhang was not credible in
recounting the alleged forcible sterilization of his spouse. Secaida-Rosales v.
INS, 331 F.3d at 307 (internal quotation marks omitted); see also
Ramsameachire v. Ashcroft, 357 F.3d at 178. Further, because his spouse's
sterilization was integral to Zhang's overall persecution claim, see
Ramsameachire v. Ashcroft, 357 F.3d at 182, the adverse credibility findings on
this point provided specific, cogent reasons bearing a legitimate nexus to the
IJ/BIA's findings that Zhang's credibility was generally suspect.

74

In sum, we conclude that the IJ and BIA findings that Zhang was not credible
are substantially supported by the record.
2. Lack of Corroborative Evidence

75

Zhang submits that the IJ and BIA erroneously denied him asylum based on his
failure to produce certain corroborative documents about his wife and family
without adequately assessing whether the materials were reasonably available
to him. See Jin Shui Qiu v. Ashcroft, 329 F.3d at 153 (observing that to deny
asylum "for want of sufficient corroboration, the adjudicator must (a) identify
the particular pieces of missing, relevant documentation, and (b) show that the
documentation at issue was reasonably available to the petitioner"); see also
Diallo v. INS, 232 F.3d at 285 (holding that an asylum applicant may be
required to produce "evidence corroborating his story, or an explanation for its
absence, ... where it would reasonably be expected").

76

Although the IJ made no specific finding as to availability, the record hardly

suggests that this issue presented any real concerns. Zhang testified that in the
weeks before his July 1, 1998 hearing, he had requested and received from his
wife in China the birth, marriage, household registration, sterilization, and fine
certificates that were offered in evidence to support his persecution claim.
Thus, Zhang's failure to produce similar documents, which the IJ considered
more probative, could reasonably be deemed more a product of Zhang's
oversight or neglect than of the documents' unavailability. Such a conclusion
would certainly be warranted with respect to the most significant missing
document identified by the IJ: an affidavit or statement from Zhang's wife
detailing her forcible sterilization. In response to an IJ inquiry about why he
had not asked his wife to send such a document, Zhang did not assert
unavailability. Rather, he replied, "Oh, the time was rather urgent, and I forgot
to mention that." Hearing Tr. at 39. In claiming that he was pressed for time,
Zhang ignored the fact that he had waited five years to seek reopening of his
asylum application.

77

Even if Zhang's ability to secure the identified corroborative documents were in

doubt, however, he would not be entitled to the relief sought in this petition.
The requirement for corroborative documents'"identification" and "availability"
articulated in Jin Shui Qiu v. Ashcroft (as derived from Diallo v. INS) pertains
when the IJ or BIA cites inadequate corroboration as a basis for denying
asylum to an applicant who is otherwise credible. See Jin Shui Qiu v. Ashcroft,
329 F.3d at 153 (noting that Diallo recognized IJ authority to deny asylum "in
some cases where the applicant has failed to provide certain corroborative
documents, even though the applicant testified credibly to facts that, if true,
would qualify her for refugee status"). That is not this case. If Zhang's failure to
produce the identified corroboration were excused, what would remain would
be (1) the IJ's finding that Zhang's "inconsistent testimony ... seriously
undermines the applicant's truthfulness and credibility before the Court," IJ
Decision at 7-8, and (2) the BIA's finding that "important discrepancies" in the
evidence "are indicative of an overall lack of veracity on the part of the
applicant," BIA Decision at 1. Such adverse credibility findings, by themselves,
constitute substantial evidence to support the conclusion that Zhang failed to
carry his burden of proof on his persecution claim.11
III. Conclusion

78

To summarize, we conclude (1) that the adverse credibility findings of the IJ,
thereafter concurred in by the BIA, were supported by substantial evidence of
inconsistent statements by Zhang on matters material to his asylum claim, and
(2) that such adverse credibility findings themselves constitute sufficient

evidence that Zhang failed to carry his burden of proof, without regard to
whether the identified corroboration was or was not available to him.
Accordingly, Zhang's petition for review of the BIA order dismissing his
appeal is hereby DENIED.

Notes:
1

Because Zhang's exclusion proceedings commenced before April 1, 1997, and a

final order was issued after October 30, 1996, this court has jurisdiction to
consider his petition for review under former 106(a) of the Immigration and
Nationality Act of 1952, 8 U.S.C. 1105a(a) (repealed 1996), as modified by
the relevant transitional rules of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 ("IIRIRA"), Pub.L. No. 104-208, div. C, tit. III,
309(c)(1), (4)(A), 110 Stat. 3009, 3009-625 to -626 (1996) (codified at 8
U.S.C. 1101 note)See Diallo v. INS, 232 F.3d 279, 282 n. 1 (2d Cir.2000).
We note that IIRIRA changed the vocabulary of immigration proceedings,
recharacterizing actions that had been referred to as "deportation" and
"exclusion" as "removal." See Evangelista v. Ashcroft, 359 F.3d 145, 147 n. 1
(2d Cir.2004). Thus, the form of relief that had been called "withholding of
deportation or return," see 8 U.S.C. 1253(h) (Supp. V 1993), is now called
"withholding of removal," see 8 U.S.C. 1231(b)(3). For ease of reference in
this opinion, however, we employ the pre-IIRIRA vocabulary in effect at the
time of Zhang's application.

In his initial entry interview, conducted in Mandarin, Zhang purportedly told an

Immigration and Naturalization Service inspector that he was a carpenter,
married, with one child, a four-year-old daughter. He had come to the United
States in search of work, having left his home in the Fujian Province in October
1992, and traveled first to Hong Kong and then to Brazil where a smuggler
arranged for his trip to New York. Zhang stated that he did not like China's onechild policy, but he reported no specific problem with the Chinese government.
His principal concern with returning to China was that he would not be able to
make a living there because of the low wage
Although these statements were inconsistent with others that Zhang would
subsequently make to support an application for asylum and withholding of
deportation, his entry interview was not received in evidence at the exclusion
hearing that addressed that application, apparently because of questions about
adequate translation and timely disclosure. Because our review is limited to the
record before the IJ and BIA, we too do not consider the entry statements in

ruling on Zhang's petition.

3

It is not clear from the amended application whether, after his wife's alleged
sterilization, Zhang still maintained a subjective fear for his own sterilization if
he were to return to ChinaSee Ramsameachire v. Ashcroft, 357 F.3d 169, 178
(2d Cir.2004) (holding that feared future persecution must be both subjectively
and objectively reasonable). We need not resolve the matter, however, because,
as discussed in Part II.B, infra, the BIA permits a husband whose wife has been
the victim of forcible sterilization to seek asylum based on his spouse's
persecution.

Section 1101(a)(42) states in relevant part:

For purposes of determinations under this chapter, a person who has been
forced to abort a pregnancy or to undergo involuntary sterilization, or who has
been persecuted for failure or refusal to undergo such a procedure or for other
resistance to a coercive population control program, shall be deemed to have
been persecuted on account of political opinion, and a person who has 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.

We note that pursuant to INA 207(a)(5), 8 U.S.C. 1157(a)(5), no more than

1,000 refugees per year may be granted asylum on the ground of persecution
for resistance to coercive population control measures, whether direct or
spousal. Qualified asylum applicants in excess of 1,000 are not removed from
the United States; rather, such persons remain in the country pursuant to a
conditional grant of asylum, which is finalized when a spot becomes available
in a future yearSee U.S. Citizenship and Immigration Services, Resistance to
Coercive Population Control (CPC) Programs, at http://
uscis.gov/graphics/services/asylum/cpc.htm. As of September 30, 2003, over
7,000 asylum applicants remained in conditional grant status. See News
Release, Executive Office for Immigration Review, U.S. Dep't of Justice, EOIR
Notifies Persons Eligible for Full Asylum Benefits for Fiscal Year 2003 Based
on Coercive Population Control Policies, available at http://
www.usdoj.gov/eoir/press/03/CPCAsylumRelease0903.pdf. Presumably, this
means that some conditional grants pending in 2003 will not be finalized until
2010, see id., a situation that may warrant congressional attention.

Zhang testified that he had to pay a smuggler "20,000 or 30,000" to arrange for
his travel to the United States, but the record is not clear as to whether he was

referring to U.S. dollars or some other currency. Hearing Tr. at 36

7

We note that IIRIRA has now codified this standard of review, providing that
"the administrative findings of fact are conclusive unless any reasonable
adjudicator would be compelled to conclude the contrary." IIRIRA 306(a),
110 Stat. at 3009-608 (codified at 8 U.S.C. 1252(b)(4)(B))

For example, in his asylum application, Zhang indicated that his first child was
born in 1988, whereas he testified that the birth occurred in 1989. Similarly,
Zhang stated in his asylum application that his second child is named "Zhang
Yong," but his family's household registry lists the child's name as "Zhang Tian
Ming."

Although our dissenting colleague suggests that this is not an "explicit[ ]"
statement by the IJ that he was rejecting Zhang's testimony on credibility
grounds,infra at [Dissent, page 82 n. 2], we do not think the language can be
construed otherwise.

10

Because our dissenting colleague disagrees with our conclusion that the quoted
language evidences an adverse credibility finding by the BIA, we cite the
relevant passage from the BIA decision in its entirety:
The Immigration Judge cites several important discrepancies surrounding the
facts that form the basis of the applicant's claim. While some of these may have
an explanation, we find that these problems, while not conclusive in
themselves, are indicative of an overall lack of veracity on the part of the
applicant. An asylum applicant bears the evidentiary burden of proof and
persuasion, and where there are significant, meaningful evidentiary gaps,
applications will ordinarily have to be denied for failure of proof. While the
Immigration Judge emphasizes the lack of supporting documents provided by
the applicant, we note that an alien's own testimony may in some cases be the
only evidence available, and it can suffice where the testimony is believable,
consistent, and sufficiently detailed to provide a plausible and coherent account
of the basis for her alleged fear. Here, we agree with the Immigration Judge
that the applicant has not presented consistent, detailed or credible testimony.
We simply cannot find the testimony, of limited credibility and lacking in
detail, combined with the few documents, provide sufficient evidence to meet
the overall burden of proof.
BIA Decision at 1-2 (internal citations omitted) (emphasis added).
This passage leaves us with no doubt that the BIA expressly agreed with the IJ's

adverse credibility finding: "we agree with the Immigration Judge that the
applicant has not presented consistent, detailed, or credible testimony." Id. at 2
(emphasis added). The fact that the BIA, in the next sentence, characterized
Zhang's testimony as of "limited credibility" does not undermine this
conclusion. Id. Few witnesses lie in response to every question asked. The BIA,
however, expressly ruled that the record of inconsistencies in Zhang's case
demonstrated "an overall lack of veracity on the part of the applicant." Id. at 1
(emphasis added).
The dissent suggests that this conclusion was somehow qualified by the BIA's
acknowledgment that "some" of Zhang's inconsistent statements "may have an
explanation", and its recognition that the inconsistencies were not themselves
"conclusive." Id. We disagree. This sentence is structured not to qualify the
credibility finding with the two observations but to clarify that the adverse
credibility finding is made despite the observations: "While some of these
[discrepancies] may have an explanation, we find that these problems, while
not conclusive in themselves, are indicative of an overall lack of veracity on the
part of the applicant." Id.
In any event, we read the BIA's observations somewhat differently from our
dissenting colleague. When viewed in light of the hearing record, the first
statement appears to acknowledge simply that "some" inconsistencies noted by
the IJ were excused by him as possibly attributable to translation or
typographical errors. But the word "some" suggests that not all inconsistencies
could be so excused; notably, not Zhang's inconsistent accounts of when his
wife was sterilized and when he learned of this event. As for the BIA's
statement that the inconsistencies in Zhang's testimony were not "conclusive,"
we understand this to mean that resolution of the factual discrepancies would
not conclusively determine the issue of persecution. Regardless, the
inconsistencies did permit a conclusion that Zhang demonstrated an "overall
lack of veracity." Id.
In sum, we are satisfied that the BIA, like the IJ, specifically found that
inconsistencies in the hearing record indicated that Zhang had failed to provide
credible testimony to support his asylum claim.
11

We do not agree with our dissenting colleague that the BIA improperly
considered the lack of detail in Zhang's testimony to conclude that he had not
met his burden of proof. InJin Shui Qiu v. Ashcroft, 329 F.3d at 151-52, we
cautioned against faulting an asylum applicant who otherwise testified credibly
for failing to provide sufficient details in support of his claim, particularly if no
efforts were made to elicit such detail through questions to the applicant. But

Jin Shui Qiu's admonitions do not pertain to a case such as this where the
applicant's testimony was independently found to lack veracity.
We recognize, of course, that to the extent Zhang was testifying about his
wife's alleged sterilization, an event about which he had no personal
knowledge, he could not be expected to provide the same level of detailed
testimony as an applicant who was with his spouse in China at the time of the
forcible procedure. In Zhang's case, however, it was the very details that he
should have known, i.e., when and how he learned that his wife was sterilized,
about which he could not provide either consistent or detailed testimony.
Accordingly, the record supports the conclusion that he failed to carry his
burden of proof.
79

STRAUB, Circuit Judge, dissenting.

80

I respectfully dissent. The majority reads the BIA's opinion as making an

adverse credibility finding based on two inconsistencies in Zhang's testimony
that were mentioned by the IJ. According to the majority, those two
inconsistent statements provide substantial evidence supporting an adverse
credibility finding by the BIA.

81

The majority's approach is flawed for the simple reason that the BIA did not
find Zhang's account incredible based on the two inconsistencies cited by the
IJ. The IJ's decision said that Zhang gave inconsistent testimony on two
matters: the date Zhang's wife was forcibly sterilized and the date he learned
about the sterilization after he arrived in the United States. The BIA, in
reviewing the IJ's decision, said that the IJ "cited several important
discrepancies surrounding the facts that form the basis of the applicant's claim."
BIA Decision at 1. However, the BIA added that "some of [the inconsistencies
cited by the IJ] may have an explanation" and that the cited inconsistencies
were "not conclusive in themselves" to provide a basis for denying Zhang's
asylum claim. Id. The majority is correct that the BIA said that the
inconsistencies cited by the IJ were "indicative of an overall lack of veracity on
the part of [Zhang]." Id. But in the very same sentence, the BIA said that the
inconsistencies were "not conclusive in themselves," id. presumably because
the BIA thought there might be an explanation for the inconsistencies or
because the BIA thought the inconsistencies were too minor to alone provide a
basis for an adverse credibility finding. Although much about the BIA's
opinion is unclear, what is clear is that if the BIA did indeed find Zhang's
account of persecution incredible, it did not rely exclusively on the
inconsistencies cited by the IJ. In light of the BIA's rejection of the view that
the inconsistencies cited by the IJ could alone support an adverse credibility

finding, I cannot agree with the majority's decision, which concludes that those
two inconsistent statements provide substantial evidence supporting the BIA's
decision. The majority errs by affirming the BIA's decision based on reasons
other than those provided by the BIA. See, e.g., Zhang v. U.S. Dep't of Justice,
362 F.3d 155, 159 (2d Cir.2004) ("`[A]n agency's order must be upheld, if at
all, on the same basis articulated in the order by the agency itself.'") (quoting
Federal Power Comm'n v. Texaco, Inc., 417 U.S. 380, 387, 94 S.Ct. 2315, 41
L.Ed.2d 141 (1974)).
82

Unlike the majority, I do not read the BIA's decision as entirely rejecting
Zhang's testimony. But even accepting the majority's view that the BIA made
an explicit adverse credibility finding, the case must be remanded. If the BIA
made an adverse credibility finding, it must have relied on some reason or
reasons in addition to the inconsistencies cited by the IJ. Unfortunately, other
than to say that the inconsistencies cited by the IJ were inconclusive as to
Zhang's credibility, the BIA does not explain its reasoning regarding Zhang's
credibility. We require the BIA to provide "`specific, cogent' reasons" for an
adverse credibility finding that "bear a legitimate nexus to the finding."
Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003). Without knowing the
basis for the BIA's adverse credibility finding assuming it made one we
cannot uphold it.

83

I read the BIA's decision as expressing doubt about the veracity of Zhang's
testimony, but not rejecting the testimony entirely. Rather, the BIA looked at
whether Zhang's testimony which it described as of "limited credibility and
lacking in detail" combined with the "few documents" Zhang offered to
corroborate his claim, were sufficient to meet his overall burden of proof. BIA
Decision at 2. Our decision in Qiu v. Ashcroft, 329 F.3d 140 (2d Cir.2003),
which was decided after the BIA denied Zhang's claim, clarifies the standards
for requiring testimonial detail from an asylum applicant. Under the standard
set forth in Qiu, Zhang's account was sufficiently detailed. Therefore, "lack of
detail" should not have played a role in the BIA's burden-of-proof analysis.
Because the BIA's application of an improper standard for testimonial
specificity may have influenced its decision to deny Zhang's claim, remand for
reconsideration in light of Qiu is warranted.

84

In addition, although Zhang submitted documents corroborating his claim,

including a certificate stating that his wife had been sterilized, the BIA's only
mention of Zhang's documentary evidence is its statement that the combination
of Zhang's testimony and his "few documents" was insufficient to meet the
overall burden of proof. BIA Decision at 2. We simply cannot discern from the
BIA's decision whether it applied the proper legal standards regarding

corroborating evidence and remand is required for that reason as well.

85

In sum, for the reasons explained below, I believe remand is required whether
the BIA's decision is read either as (1) making an adverse credibility finding
(the majority's view), or (2) holding that Zhang failed to meet his burden of
proof based on a combination of the lack of detail in Zhang's testimony,
insufficient documentary evidence, and doubts about his credibility. Moreover,
the fact that the BIA has so inadequately explained its decision such that there
is doubt as to its reasoning is itself a reason to remand for explanation.
I. The BIA's Decision

86

In a case such as this, where the BIA has issued an opinion which does not fully
adopt the IJ's decision, we review the BIA's decision, not the IJ's decision, to
see if it is supported by substantial evidence and free from legal error. See Qiu
v. Ashcroft, 329 F.3d 140 (2d Cir.2003) (reviewing BIA's decision); Diallo v.
INS, 232 F.3d 279 (2d Cir.2000) (same); see also Hernandez v. Ashcroft, 345
F.3d 824, 832 (9th Cir.2003) ("Where as here, the BIA has conducted a de novo
review of the IJ's decision, we review only the decision of the BIA."); Girma v.
INS, 283 F.3d 664, 666 (5th Cir.2002) ("Here, the BIA did not adopt the
decision of the IJ, but conducted a complete review of the record. Thus, our
review is limited to the BIA's decision."). Although streamlining regulations
were in effect at the time the BIA reviewed Zhang's claim which would have
allowed the BIA to summarily affirm the IJ's decision, see 8 C.F.R. 3.1(a)(7)
(ii) (2002) (recodified at 8 C.F.R. 1003.1(a)(7)(ii) (2004)), the BIA did not
summarily affirm.1 Nor did the BIA state that it was adopting the reasoning of
the IJ in full. Therefore, we review the BIA's decision.

87

The BIA's opinion discusses Zhang's claim as follows:

88

The Immigration Judge cites several important discrepancies surrounding the

facts that form the basis of the applicant's claim. While some of these may have
an explanation, we find that these problems, while not conclusive in
themselves, are indicative of an overall lack of veracity on the part of the
applicant. An asylum applicant bears the evidentiary burden of proof and
persuasion, and where there are significant, meaningful evidentiary gaps,
applications will ordinarily have to be denied for failure of proof. Matter of
Dass [20 I & N Dec. 120 (BIA 1989)]. While the Immigration Judge
emphasizes the lack of supporting documents provided by the applicant, we
note that an alien's own testimony may in some cases be the only evidence
available, and it can suffice where the testimony is believable, consistent, and

sufficiently detailed to provide a plausible and coherent account of the basis for
his alleged fear. See Diallo v. INS, 232 F.3d 279 (2d Cir.2000); Matter of Dass,
supra; Matter of Mogharrabi, [19 I & N Dec. 439 (BIA 1987)]; see e.g.,
Carvajal-Munoz v. INS, 743 F.2d 562, 574 (7th Cir.1984). Here, we agree with
the Immigration Judge that the applicant has not presented consistent, detailed
or credible testimony. We simply cannot find the testimony, of limited
credibility and lacking in detail, combined with the few documents, provide
sufficient evidence to meet the overall burden of proof. See Matter of S-M-J, 21
I & N Dec. 722 (BIA 1997); Matter of Dass, supra; Matter of Mogharrabi,
supra.
89

BIA Decision at 1-2.

90

As the majority recounts, the IJ stated that Zhang gave inconsistent testimony
about two matters the date Zhang's wife was forcibly sterilized and the date
Zhang learned of the sterilization after arriving in the United States. See Ante at
74-77. The BIA presumably was referring to those two inconsistencies when it
stated that "[t]he Immigration Judge cite[d] several important discrepancies
surrounding the facts that form the basis of the applicant's claim." BIA
Decision at 1. The BIA acknowledged, however, that some of the
inconsistencies cited by the IJ "may have an explanation," and concluded that
although the inconsistencies were "indicative of an overall lack of veracity on
the part of the applicant," they were "not conclusive in themselves." Id.
Therefore, the BIA was not willing to make an adverse credibility finding based
solely on the inconsistencies cited by the IJ.

91

The majority appears to argue that the BIA's statement that the inconsistencies
were "not conclusive in themselves" was meant to convey that the discrepancies
were not themselves about the central issue of whether Zhang suffered
persecution i.e., whether or not Zhang's wife was in fact sterilized. See ante
at 75 n. 10. There were discrepancies about certain dates, but not about the fact
of the sterilization. In the majority's view, the BIA concluded that although
Zhang consistently testified that his wife was sterilized, the discrepancies about
the dates were conclusive in themselves as to Zhang's credibility. In other
words, based on the discrepancies about dates, the BIA could determine
conclusively that Zhang was lying about the sterilization.

92

The majority's reading is, at best, quite strained. The BIA said: "While some of
the [discrepancies] may have an explanation, we find that these problems,
while not conclusive in themselves, are indicative of an overall lack of veracity
on the part of the applicant." BIA Decision at 1. The most straightforward
reading of this sentence is that the BIA concluded that although the

inconsistencies about the dates were "indicative" of a lack of veracity on the

part of Zhang, they were not alone enough to make it sure that Zhang was lying
about the persecution. The inconsistencies were not conclusive as to whether
Zhang's account of the sterilization was incredible.
93

The majority asserts that the BIA's sentence is structured "not to qualify the
credibility finding" but to "clarify that the adverse credibility finding is made
despite the observations." Ante at 75 n. 10. "Despite" is a word injected by the
majority. Nothing about the sentence suggests that the BIA was seeking to
strengthen its credibility assessment. Rather, the words "indicative" and "not
conclusive" are hedging terms.

94

It makes sense that the BIA was unwilling to find Zhang's account incredible
based only on the inconsistent statements mentioned by the IJ.2 Although
Zhang's hearing testimony was admittedly confusing, the discrepancies cited by
the IJ may have resulted from language difficulties and unclear questioning,
rather than any attempt on Zhang's part to advance false claims of persecution. I
agree with the majority that it is not our role to "see if Zhang's inconsistent
statements can somehow be reconciled." Ante at 77. However, in this case, the
BIA specifically found that some of the inconsistencies cited by the IJ "may
have an explanation" and were "not conclusive in themselves" as to Zhang's
credibility. BIA Decision at 1.

95

After stating that the inconsistencies cited by the IJ were "not conclusive in
themselves," the BIA said: "[w]e agree with the Immigration Judge that the
applicant has not presented consistent, detailed, or credible testimony." Id. at 2.
This statement in isolation appears to be an adverse credibility finding. Yet this
sentence is in tension with the BIA's previous statement that the inconsistencies
cited by the IJ were "not conclusive in themselves," id. at 1, and the BIA's next
sentence which described Zhang's testimony as of "limited credibility," id. at2
rather than "not credible." If the BIA was of the view that Zhang's account
was incredible, it could have stopped its analysis with an adverse credibility
finding rather than considering whether Zhang's testimony combined with his
documentary evidence met the overall burden of proof. In addition, I am
reluctant to place great weight on the BIA's statement that it agreed with the IJ
that Zhang did not present "consistent, detailed, or credible testimony," as the IJ
did not in fact criticize Zhang's testimony as lacking in detail.

96

Therefore, it appears to me that the BIA expressed doubt about Zhang's

credibility, but did not make an adverse credibility finding. Rather than finding
Zhang incredible based on the inconsistencies in his testimony that were cited
by the IJ and denying Zhang's claim on that basis, the BIA considered whether

Zhang's testimony which it described as "lacking in detail" and "of limited

credibility" combined with the documents Zhang submitted, met the overall
burden of proof.
97

II. Insufficient Reasons for Adverse Credibility Finding

98

Even accepting the majority's view that the BIA made an adverse credibility
finding rather than simply expressing doubt about Zhang's credibility, remand
is required because the BIA did not explain the basis for the adverse credibility
finding.

99

As the majority recognizes, we require the BIA to provide "specific, cogent"

reasons for an adverse credibility finding that bear a "legitimate nexus" to the
finding. Secaida-Rosales v. INS, 331 F.3d 297, 305 (2d Cir.2003). Moreover,
inconsistencies that are "relatively minor and isolated" need not "be fatal to
credibility." Diallo v. INS, 232 F.3d 279, 288 (2d Cir.2000).

100 Although the majority recognizes that the BIA is required to explain the basis
for an adverse credibility finding, the majority ignores the fact that the BIA
stated that the inconsistencies cited by the IJ were "not conclusive" and that
some "may have an explanation." Instead, the majority takes the view that the
BIA considered the two inconsistencies cited by the IJ conclusive as to Zhang's
credibility. Relying on that view, the majority reasons that the two
inconsistencies "were not the sort of `minor or isolated' discrepancies so plainly
immaterial to a persecution claim that no reasonable fact-finder could use them
as a basis for an adverse credibility ruling," ante at 77, and says that the
inconsistencies qualify as "specific, cogent" reasons bearing a "legitimate
nexus" to the adverse credibility finding that our cases require, ante at 77. The
majority concludes that the "the adverse credibility findings of the IJ, thereafter
concurred in by the BIA, were supported by substantial evidence of inconsistent
statements by Zhang on matters material to his asylum claim" and these adverse
credibility findings "constitute substantial evidence to support the conclusion
that Zhang failed to carry his burden of proof." Ante at 79.
101 I cannot agree with the majority's approach because it is clear from the BIA's
decision that if the BIA did indeed make an adverse credibility finding, it must
have relied on some reason in addition to the two inconsistencies cited by the
IJ. Although the BIA concluded that those inconsistencies were "indicative" of
a lack of veracity on the part of Zhang, the inconsistencies were not conclusive
of the matter. The BIA's decision fails to provide any other reason for doubting
Zhang's account. Although the BIA mentions the lack of detail in Zhang's

testimony and the "few documents" that he presented, which are matters that
could potentially bear on credibility, the BIA mentions those factors only in
reference to whether Zhang met the overall burden of proof, and not in
reference to an assessment of Zhang's credibility.
102 Therefore, assuming the BIA did make an adverse credibility finding as the
majority asserts that it did the BIA failed to provide the specific reasons for
the decision that we require. See Secaida-Rosales, 331 F.3d at 307. Without
knowing the reasons for the adverse credibility finding, we cannot determine
whether the reasons are supported by evidence in the record and whether the
reasons bear a "legitimate nexus" to the adverse credibility finding. See id. For
example, suppose the BIA found Zhang incredible based on the two
inconsistencies cited by the IJ and some third reason, which upon our
examination we discovered had no basis in the record. In such a case, we would
have to remand, because the BIA expressed its view that the two
inconsistencies cited by the IJ would not alone support an adverse credibility
finding. In the present case, assuming the BIA did find Zhang incredible, we do
not know what reasons it relied upon in addition to the two inconsistencies cited
by the IJ. Therefore, we are unable to conduct an adequate review of the
decision.
103 The fact that a hypothetical reasonable adjudicator could have made an adverse
credibility finding based on the two inconsistencies cited by the IJ does not
suffice. Rather, to uphold the BIA's adverse credibility finding based on the
inconsistencies cited by the IJ, it must be the case that the BIA actually made
an adverse credibility finding based on those inconsistencies. See SEC v.
Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 91 L.Ed. 1995 (1946) ("[A]
reviewing court ... must judge the propriety of [an agency's] action solely by
the grounds invoked by the agency."); Comollari v. Ashcroft, 378 F.3d 694,
696 (7th Cir.2004) ("As we tirelessly remind the lawyers from the Justice
Department's Office of Immigration Litigation, the Chenery rule bars a
reviewing court from upholding an agency's decision on a ground different
from the agency's.") (citations omitted). Our deference to the BIA does not
include an obligation to seek out alternative grounds to affirm based on what
the BIA could have, but did not, find. See Qiu, 329 F.3d at 149. I do not agree
with the majority that we can affirm an adverse credibility finding by the BIA
based on the inconsistencies cited by the IJ, as the BIA was of the view that
those inconsistencies were insufficient to support such a finding. Because the
BIA does not give us the reasons for its adverse credibility finding assuming
it made one we must remand to the BIA for further explanation of its
reasoning.

104 III. Improper Demand for Additional Testimonial Detail

105 For the reasons discussed above, it appears that the BIA did not deny Zhang's
persecution claim based on a finding that his account was incredible, but rather
denied his claim based on a conclusion that Zhang's testimony, combined with
the documents he submitted, was insufficient to meet the overall burden of
proof.
106 The BIA mentions the lack of detail in Zhang's testimony as a reason for
concluding that he failed to meet his overall burden of proof. In Qiu v. Ashcroft,
329 F.3d 140 (2d Cir.2003), we held that the BIA erred in denying an asylum
claim based on the view that the testimony was insufficiently detailed. We
acknowledged in Qiu that "the petitioner whose testimony is vague can only
qualify for asylum if he produces evidence that adds a certain amount of detail
to his story." Id. at 150. However, we explained that the level of detail required
by the BIA cannot be a subjective determination. Id. at 151-52. Rather, we said
that "testimony is `too vague' if it doesn't identify facts corresponding to each
of the elements of one of the `refugee' categories of the immigration statutes, as
interpreted by the BIA and the federal courts." Id. at 151. Therefore, a
petitioner need not testify in great detail to establish refugee status, so long as
he or she testifies to concrete facts corresponding to each of the statutory
elements for asylum eligibility. See id.
107 The BIA mentioned the "lack of detail" in Zhang's testimony as a reason for
finding he failed to meet his burden of proof, but failed to explain why more
detail was required. Zhang clearly testified that (1) his wife was taken by five
or six people, including officials from the village government, from her house;
(2) she was brought to the hospital and sterilized; and (3) she did not agree to
the operation. Under Qiu, Zhang's testimony was sufficiently specific because
the facts, if true, establish eligibility for asylum. See 8 U.S.C. 1101(a)(42) ("
[A] person who has been forced to abort a pregnancy or to undergo involuntary
sterilization... shall be deemed to have been persecuted on account of political
opinion...."); Qiu, 329 F.3d at 151 ("[Qiu's testimony] is not detailed testimony,
but neither is it `vague.' It is specific as to the following essential facts: (a) that
his wife was forced to be sterilized against her will, and (b) that the agents of
coercion were government birth control officials, from which it follows, absent
contrary evidence, that they were acting to advance China's population control
policy. This is enough specificity to bring Qiu's wife within the ambit of the
IIRIRA's regulatory presumption of persecution on account of political opinion,
and, under In re C-Y-Z-, it suffices for Qiu as well.").
108 Of course, lack of detail in an applicant's testimony can potentially bear on a

108 Of course, lack of detail in an applicant's testimony can potentially bear on a

credibility assessment. We explained in Qiu that "[w]here an applicant gives
very spare testimony ... the IJ or the INS may fairly wonder whether the
testimony is fabricated," id. at 152, and we suggested that in such cases "the IJ
and counsel for the INS may wish to probe for incidental details, seeking to
draw out inconsistencies that would support a finding of lack of credibility," id.
109 However, the IJ did not remark on lack of detail as a reason for doubting
Zhang's credibility, and if the BIA considered lack of detail relevant to Zhang's
credibility, it did not explain as much. Instead, the BIA apparently considered
the "lack of detail" in Zhang's testimony relevant in determining whether Zhang
met his burden of proof. However, under the standard set forth in Qiu, Zhang's
claim should not have been denied on the basis of insufficient testimonial
specificity. Qiu was decided after the BIA's decision on Zhang's claim, and we
should remand to the BIA for reconsideration of whether Zhang has met his
burden of proof in light of Qiu. It may be that the BIA would find that Zhang
has failed to meet his burden of proof even without "lack of detailed testimony"
playing a role in its calculus. But this is a determination the agency must make
in the first instance.
110 IV. Inadequate Explanation of Treatment of Corroborating Documents
111 The BIA also erred in its consideration of Zhang's corroborating
documentation. Corroborating evidence is relevant both in assessing credibility,
and in determining whether an applicant has met the overall burden of proof. In
Diallo v. INS, 232 F.3d 279 (2d Cir.2000), we explained the process the BIA
should follow in considering asylum claims:
112 First, the agency must determine whether the applicant's testimony is credible.
In making this determination, the presence of corroborating evidence may be
relevant. Second, the agency must determine whether the applicant has met his
or her burden of proof. Here, too, corroborating evidence (or an explanation for
its absence) may be required if it would reasonably be expected, even where the
applicant's testimony is credible.... [I]f the BIA finds that [the applicant's]
testimony was credible, it should decide whether additional corroboration is
nonetheless required to meet his burden of proof. If the BIA insists on further
corroboration, it should explain specifically, either in its decision or otherwise
in the record: (1) why it is reasonable under the BIA's standards to expect such
corroboration; and (2) why [the applicant's] proffered explanations for the lack
of such corroboration are insufficient.
113 Diallo, 232 F.3d at 290.

114 Zhang produced significant corroboration for his testimony, including: (1) his
birth certificate; (2) his marriage certificate; (3) a copy of his family's
household register; (4) a picture of his wife and two children; (5) a certificate of
sterilization indicating that Zhang's wife had a sterilization operation on June 5,
1993; and (6) a cash receipt dated May 12, 1993 confirming that Zhang's wife
paid a 3,000 RMB "family planning penalty" for "one exceeded birth."
115 The BIA, under Diallo, should have first made an explicit credibility
determination that included an examination of the effect of Zhang's
corroborating documents on his credibility. We explained in Diallo:
116 In making their [credibility] determinations, the IJ and the BIA should consider
the underlying consistency and plausibility of [the applicant's] story, the extent
to which it was corroborated, and the believability of the explanations [the
applicant] offered for failing to provide further corroboration. We remind the IJ
and the BIA that [the applicant's] simple failure to produce any particular
documentary support cannot serve as the sole basis of an adverse credibility
finding. While corroboration may bolster credibility, an applicant may still be
credible absent specific corroboration, especially where his or her explanations
for the absence of corroboration are themselves credible.
117 Diallo, 232 F.3d at 290. Although Zhang offered strong corroborating
evidence, including the sterilization certificate and the receipt showing payment
of a "family planning penalty," there is no indication in the BIA's decision that
it considered whether Zhang's documentation bolstered his credibility. If the
BIA doubted the authenticity of Zhang's documents, it did not say as much.
Indeed, the BIA's only mention of the documents submitted by Zhang was its
statement: "We simply cannot find the testimony, of limited credibility and
lacking in detail, combined with the few documents, provide sufficient evidence
to meet the overall burden of proof." BIA Decision 2 (emphasis added).
118 We do not know from the BIA's statement whether it thought that Zhang's
documents were forged, or whether the BIA accepted the authenticity of the
documents but thought that further documentary evidence was still needed for
Zhang to meet the burden of proof. For example, the BIA might have thought
that the sterilization certificate was authentic, but that Zhang provided
insufficient corroborating evidence that the sterilization was forced even if
his testimony was credible. Or, the BIA may have concluded that the
certificate's authenticity was suspect and therefore failed to bolster Zhang's
credibility. The point is that we should not have to guess at the BIA's
reasoning. In light of the BIA's failure to explain its treatment of the
corroborating documents, we cannot determine whether it applied the correct

legal standards. In addition, we cannot simply rely on the IJ's assessment of the
documents because the BIA does not explicitly (or even implicitly) adopt the
IJ's assessment of Zhang's documentary evidence.
119 The majority's view is that the BIA made an explicit adverse credibility
finding, and therefore the BIA and IJ were not required to explain under Diallo
why it was reasonable to expect further corroboration and why Zhang's
explanations for the lack of such corroboration were insufficient. As I
explained above, I do not think that the BIA made an explicit adverse
credibility finding. However, it should have under Diallo. Diallo instructs that
the BIA should first "decide explicitly whether or not [an applicant's] testimony
was credible," Diallo, 232 F.3d at 290, and that assessment must include a
consideration of corroborating evidence, id.
120 In any event, as I discussed above, even assuming the BIA did make an adverse
credibility finding, remand is required because the finding was not adequately
explained.
V. Conclusion
121 In sum, the BIA's opinion leaves us guessing at its reasoning. We should not
have to guess at the basis for the denial of an asylum claim. See SEC v.
Chenery Corp., 332 U.S. 194, 196-97, 67 S.Ct. 1575, 91 L.Ed. 1995 (1946) ("If
the administrative action is to be tested by the basis upon which it purports to
rest, that basis must be set forth with such clarity as to be understandable. It will
not do for a court to be compelled to guess at the theory underlying the
agency's action; nor can a court be expected to chisel that which must be precise
from what the agency has left vague and indecisive. In other words, `we must
know what a decision means before the duty becomes ours to say whether it is
right or wrong.'"). The BIA's decision in this case, is, to use its own words,
"lacking in detail." Although we accord the BIA deference, the BIA is required
to "elucidate the basis for its factual conclusions," Qiu, 329 F.3d at 149, and
"we will vacate BIA conclusions ... that a perfectly reasonable fact-finder could
have settled upon, insofar as the BIA ... has not supported its findings with
record evidence," id.; see also Mihaylov v. Ashcroft, 379 F.3d 15, 21 (1st
Cir.2004) ("`A reviewing court should judge the action of [the BIA] based only
on reasoning provided by the agency, not based on grounds constructed by the
reviewing court,' and `that basis must be set forth with such clarity as to be
understandable.'") (citations omitted); Guchshenkov v. Ashcroft, 366 F.3d 554,
560 (7th Cir.2004) ("The two cases under review, like the other cases in which
we have reversed the board of late, are not so difficult that it is unreasonable for
a reviewing court to expect and require reasoned judgments at the

administrative level.").

Notes:
1

When the BIA summarily affirms under the streamlining regulations, we

review the IJ's decision directlySee Zhang, 362 F.3d at 158.

Indeed, the IJ never explicitly stated that the two inconsistencies were enough
alone to deny Zhang's claim. Rather, the IJ said that the inconsistencies
"seriously undermin[ed] the applicant's truthfulness and credibility before the
Court with regard to the forced sterilization of his spouse," then turned to a
discussion of Zhang's failure to offer sufficient corroborating documentation,
and ultimately concluded that Zhang failed to establish eligibility for asylum