Hui Pan v. Eric Holder, Jr.

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-1887

HUI PAN,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General,

Respondent.

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

Argued: September 19, 2013 Decided: December 17, 2013

Before TRAXLER, Chief Judge, and MOTZ and KEENAN, Circuit
Judges.

Petition for review denied by published opinion. Chief Judge
Traxler wrote the opinion, in which Judge Motz and Judge Keenan
joined.

ARGUED: Joshua A. Berman, BLAINE L. GILBERT & ASSOCIATES, PA,
Baltimore, Maryland, for Petitioner. Stephen McCoy Elliott,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent. ON BRIEF: Stuart F. Delery, Principal Deputy
Assistant Attorney General, Civil Division, Erica B. Miles,
Senior Litigation Counsel, Office of Immigration Litigation,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.
TRAXLER, Chief Judge:

Hui Pan, a native and citizen of China’s Fujian Province,

petitions for review of the denial of his application for asylum

and withholding of removal based on his claim that government

officials will sterilize him if he returns to China. See 8

U.S.C. § 1101(a)(42). Pan also seeks review of the denial of

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

his petition.

I.

In November 2008, Pan left his home in the Jin’an District

of Fuzhou City for the United States. He ended up in Baltimore,

Maryland, where he is living with his uncle while his

application for asylum works its way through the system. Pan

arrived in the United States without valid entry documents, and

the Department of Homeland Security (“DHS”) detained him and

conducted a credible fear interview. During the interview, Pan

claimed that if he returned to China, family planning officials

would forcibly sterilize him for violating China’s one-child

policy. Pan stated that he and his wife, Xiaojuan Chen, already

had a daughter when Chen became pregnant in November 2008.

According to Pan, when local family planning officials

discovered the pregnancy, they forced Chen to have an abortion

and beat Pan for resisting. Pan explained that officials took

steps to sterilize Chen soon after the abortion but decided she

2
was “not suitable” for sterilization and that Pan would have to

be sterilized instead. J.A. 354. When the interviewing officer

asked why Chen was unsuitable, Pan answered that government

officials “did not explain why she was not able” to be

sterilized. J.A. 354. The asylum officer determined that there

was “a significant possibility that the assertions underlying

[Pan’s] claim could be found credible,” J.A. 350, and referred

his case for a full asylum determination by an immigration judge

(“IJ”).

The DHS placed Pan in removal proceedings, charging him as

removable for being present in the United States without having

been admitted. See 8 U.S.C. § 1182(a)(7)(A)(i)(I). Pan

conceded removability and applied for asylum, withholding of

removal and relief under the CAT. In support of his asylum

application, Pan submitted a written statement that elaborated

on various statements he made during his credible fear

interview. Pan stated that Chen was three months pregnant when

“Birth Control Bureau” personnel appeared at his home on

November 25, 2008, charging that Chen’s pregnancy violated Birth

Control Regulations and that an abortion was required. When Pan

attempted to stop them, three men “pushed [him], beat [him] and

kicked [him] with their feet.” J.A. 234. According to Pan’s

statement, officials then took Chen away, performed the abortion

and sent her back home the following day. Pan claims, moreover,

3
that government officials returned three days later on November

28 and took her away once again—this time to sterilize her. But

as it so happened, Pan alleged, doctors did not perform “a tubal

ligation because of her health reasons.” J.A. 235. Pan stated

that he was not at home during this second visit by government

officials, and that when he returned later that day, he found a

notice in his mailbox requiring him to report for sterilization

on November 30. After a discussion with his family, Pan decided

to flee to the United States without his family. He claimed

that he left home on the morning of November 30, 2008, and hid

with friends until the middle of December, at which time he left

for Beijing. Pan did not specify the location of his initial

hiding place. According to his application, Pan stayed in

Beijing for two days before flying to Rome. He spent one day in

Rome and then flew to Mexico before arriving in the United

States in January 2009. Pan’s asylum application made no

mention of a smuggler and did not address how, if at all, he

obtained the travel documents necessary to make such a trip.

Pan submitted several corroborating documents with his

application, including a “Fuzhou Surgery Certificate” dated

November 25, 2008, the day of the abortion, indicating that Chen

was pregnant and that “[i]nduced abortion is to be performed,”

J.A. 246; a “Fujian Women and Children Health Center Disease

Explanation Form” dated November 28, 2008, stating that

4
“[b]ecause . . . Chen has [a] serious skin disease (skin

damages) on her skin around the area where she had her

operation, it is not advisable for her to get a tubal ligation,”

J.A. 249; a notice dated November 28, 2008, that was purportedly

issued by the Fuzhou Jin’an District Birth Control Bureau

directing Pan to report for sterilization on November 30; a

marriage certificate for Pan and Chen; and a birth certificate

indicating a daughter was born to Pan and Chen on June 24, 2008.

During his asylum hearing, Pan testified he believed Chen

was two months pregnant at the time she was forced to undergo

the abortion, but admitted he “[could not] remember clearly.”

J.A. 97. Pan recalled that when Chen returned home after the

abortion, she had a bandage “[a]round [her] stomach,” looked

“pale and weak,” and had difficulty walking. J.A. 99-100. Pan

testified that he did not ask Chen for details about the

abortion. In explaining why family planning officials decided

to have him, rather than Chen, sterilized, Pan told the IJ that

Chen could not undergo a sterilization procedure because of a

“skin problem.” J.A. 77.

Pan also testified in greater detail regarding his flight

from China to the United States. According to Pan, on the same

evening he received notice that the government intended to

sterilize him, his parents located and hired a smuggler to get

5
him out of China. Pan, however, professed not to know whether

or to what extent his parents compensated the smuggler.

Pan stated that on the morning of November 30, 2008, he

left for the Mawei District in Fuzhou City where he hid with a

friend for two days. Pan testified that after hiding in Fuzhou

City for two days, he traveled to Beijing, as arranged by the

smuggler, where he stayed for another two days in a house owned

by someone he did not know. Finally, Pan testified that he flew

to Rome using a passport issued in his actual name and obtained

on his behalf from the Chinese government by someone he could

not identify. Pan indicated he no longer had this Chinese

passport because it was “exchanged” at some point for a Japanese

passport. From Rome, Pan flew to Mexico City and then rode in a

truck to the Texas border where he was detained by DHS.

The IJ asked Pan how he obtained his corroborating

documents for the asylum hearing. Pan responded that friends of

his parents brought the documents from China to the United

States “discreetly, secretly” and left them with his aunt and

uncle in Baltimore. J.A. 88. Pan was unable to name these

family friends or provide any contact details for them. When

asked to explain why he did not call his aunt or uncle as

witnesses to verify receipt of the documents, Pan told the IJ

they had to work.

6
 The IJ found that neither Pan’s testimony nor his

supporting documentation was credible. The IJ offered several

reasons to support the adverse credibility determination.

First, the IJ found it implausible that Pan’s parents could

locate and hire a smuggler so quickly—on the same day, in fact,

that Pan allegedly learned the government intended to sterilize

him. Second, the IJ concluded Pan’s testimony about where and

with whom he hid in Fuzhou City was vague and inconsistent.

Third, the IJ was troubled by Pan’s inability to provide details

about Chen’s abortion beyond a general description of her

physical appearance and condition following the procedure.

Finally, the IJ expressed “major concern . . . as to the

authenticity of the documents.” J.A. 45. The IJ observed that

“the documents were allegedly provided by an unknown courier to

the uncle whose testimony could have been provided today, but

was not provided.” J.A. 46. Based on Pan’s lack of credibility

and the absence of credible independent evidence supporting his

claim, the IJ denied Pan’s application for relief.

The Board of Immigration Appeals (“BIA”) adopted and

affirmed the IJ’s decision and dismissed Pan’s appeal. In

concluding that the adverse credibility determination was not

clearly erroneous, the BIA reiterated the IJ’s specific reasons

and offered additional reasons to support the adverse

credibility determination. First, the BIA observed that when

7
Pan began his testimony about the events surrounding Chen’s

forced abortion, he did not mention being beaten by officials

even though that allegation was featured in his credible fear

interview and his asylum application. Second, the BIA concluded

that Pan’s testimony regarding how long Chen had been pregnant

at the time of the abortion was inconsistent with the Fuzhou

Surgery Certificate he submitted. Third, the BIA found that

Pan’s explanation that Chen could not be sterilized due to an

unspecified skin condition was vague and unclear. Having

concluded that the IJ “gave specific and cogent reasons for

finding Pan’s testimony incredible, which are supported by the

record,” the BIA examined the “corroborating documentation [Pan]

submitted” and concluded the documents were “inherently

unreliable,” J.A. 3, and that Pan did not authenticate the

documents through any means whatsoever. The BIA therefore

concluded that the corroborating evidence offered by Pan “did

not rehabilitate [his] testimony,” id., and that Pan failed to

establish eligibility for asylum or withholding of removal.

Finally, the BIA stated additionally that the “totality of the

record [did] not establish that [Pan] would more likely than not

be subject to torture upon his return to China” within the

meaning of the CAT, id.

8
 II.

“The scope of our review of a final order of removal

denying asylum [or withholding of removal] is narrow,” Dankam v.

Gonzales, 495 F.3d 113, 119 (4th Cir. 2007), requiring us to

affirm the order as long as it is not “manifestly contrary to

law,” 8 U.S.C. § 1252(b)(4)(C). Federal appellate courts review

factual findings, including adverse credibility determinations,

using the “substantial evidence” standard. See Djadjou v.

Holder, 662 F.3d 265, 273 (4th Cir. 2011); Dankam, 495 F.3d at

119. Under this deferential standard, “administrative findings

of fact are conclusive unless any reasonable adjudicator would

be compelled to conclude to the contrary.” 8 U.S.C. §

1252(b)(4)(B). Therefore, “[w]hen the denial of asylum is based

on the conclusion that the applicant failed to meet his

evidentiary burden for establishing eligibility, . . . then we

review for substantial evidence and must affirm a determination

of statutory ineligibility by the BIA unless the ‘evidence

presented was so compelling that no reasonable factfinder could

fail to find’ eligibility for asylum.” Dankam, 495 F.3d at 119

(quoting INS v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992)).

This means that when “the record plausibly could support two

results: the one the IJ chose and the one the petitioner

advances, reversal is only appropriate where the court finds

that the evidence not only supports the opposite conclusion, but

9
compels it.” Niang v. Gonzales, 492 F.3d 505, 511 (4th Cir.

2007) (alterations and internal quotation marks omitted).

Finally, “[b]ecause the BIA affirmed the IJ’s order and

supplemented it,” we apply these standards of judicial review to

“the factual findings and reasoning contained in both

decisions.” Niang, 492 F.3d at 511 n.8.

III.

A.

The Immigration and Nationality Act (the “INA”) authorizes

the Secretary of Homeland Security or the Attorney General to

confer asylum on any alien who establishes refugee status. See

8 U.S.C. § 1158(b)(1)(A). An applicant for asylum bears the

burden of proving that he or she is a refugee, see 8 U.S.C. §

1158(b)(1)(B)(i), meaning that he or she is “unable or unwilling

to return to . . . [his or her] country because of persecution

or a well-founded fear of persecution on account of race,

religion, nationality, membership in a particular social group,

or political opinion,” 8 U.S.C. § 1101(A)(42)(A). Applicants

“may satisfy this burden by showing either that they were

subjected to past persecution or that they have a well-founded

fear of future persecution on account of” one of the enumerated

grounds. Djadjou, 662 F.3d at 272 (internal quotation marks and

alterations omitted). The INA specifically permits victims of

China’s population control policy to seek political asylum:

10
 [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.

8 U.S.C. § 1101(42). Pan attempted to prove his refugee status

by demonstrating a well-founded fear of future persecution.

Although Pan testified about past mistreatment he suffered while

resisting officials as they forcibly removed Chen to terminate

her pregnancy, the clear thrust of Pan’s claim is that he fears

family planning officials will sterilize him if he is removed to

China. 1

1
Because both the IJ and the BIA denied Pan’s claim based
on the adverse credibility determination, neither provided a
considered analysis of the extent to which Pan’s claim was
premised on past persecution or a fear of future persecution.
Regarding the past persecution component, the IJ expressed doubt
that the alleged beating would rise to the level of
“persecution” within the meaning of the statute. Ultimately,
the IJ did not decide the question and rested the denial of
relief on the adverse credibility determination. Although the
BIA adopted the denial of relief based on the adverse
credibility finding, it noted in passing that Pan “has not
asserted that he fears future persecution based on anything
other than his discredited claim of past persecution.” J.A. 4.
Our review of the record leads us to a different conclusion.
Pan’s claim of future persecution is based primarily on events
that occurred after his wife’s forced abortion. Pan’s testimony
regarding Chen’s abortion merely provides context for his well-
founded fear story. We recognize, moreover, that Pan cannot
base his asylum claim on Chen’s forced abortion, see Ni v.
(Continued)
11
 The “well-founded fear of persecution” standard consists of

a subjective and objective component. The subjective part

requires the alien to “present[] candid, credible, and sincere

testimony demonstrating a genuine fear of persecution.”

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

(internal quotation marks omitted). “The objective element

requires a showing of specific, concrete facts that would lead a

reasonable person in like circumstances to fear persecution.”

Id. at 187-88.

“The testimony of the applicant may be sufficient to

sustain the applicant’s burden without corroboration, but only

if the applicant satisfies the trier of fact that the

applicant’s testimony is credible, is persuasive, and refers to

specific facts sufficient to demonstrate that the applicant is a

refugee.” 8 U.S.C. § 1158(b)(1)(B)(ii). Because “the

subjective element cannot generally be proved other than through

the applicant’s testimony,” however, “a determination that the

applicant’s testimony is not credible will generally defeat the

claim,” Camara v. Ashcroft, 378 F.3d 361, 369-70 (4th Cir.

2004), unless the would-be asylee is able to prove eligibility

Holder, 613 F.3d 415, 425 (4th Cir. 2010), but we see no reason
to think he was asserting such a derivative claim here.

12
with evidence independent of the discredited testimony, see

Tassi v. Holder, 660 F.3d 710, 725-26 (4th Cir. 2011).

B.

Under the REAL ID Act, an IJ, after “[c]onsidering the

totality of the circumstances, and all relevant factors,” may

make an adverse credibility determination based on factors such

as “responsiveness of the applicant . . . , the inherent

plausibility of the applicant’s . . . account, the consistency

between the applicant’s . . . written and oral statements. . . ,

the internal consistency of each such statement, the consistency

of such statements with other evidence of record . . . , or any

other relevant factor.” 8 U.S.C. § 1158(b)(1)(B)(iii). A

credibility determination may rest on any relevant factor even

if such factor does not “go[] to the heart of the applicant’s

claim.” Id. The REAL ID Act’s credibility provision affords a

flexible, “commonsense approach” to credibility determinations,

Singh v. Holder, 699 F.3d 321, 329 (4th Cir. 2012) (internal

quotation marks omitted), but also ensures that an IJ does not

“cherry pick solely facts favoring an adverse credibility

determination while ignoring facts that undermine that result,”

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

Shah v. Attorney Gen. of the United States, 446 F.3d 429, 437

(3d Cir. 2006) (“Although we don’t expect an Immigration Judge

to search for ways to sustain an alien’s testimony, neither do

13
we expect the judge to search for ways to undermine and belittle

it. Nor do we expect a judge to selectively consider evidence,

ignoring that evidence that corroborates an alien’s claims and

calls into question the conclusion the judge is attempting to

reach.”) (citation omitted). When an adverse credibility

determination has been made, this court must assess whether the

IJ or BIA identified non-speculative, “specific, cogent

reason[s]” in support of the adverse credibility finding.

Dankam, 495 F.3d at 120-21 (internal quotation marks omitted).

If an adverse credibility finding is based on speculation and

conjecture rather than specific and cogent reasoning, it is not

supported by substantial evidence. See Tewabe v. Gonzales, 446

F.3d 533, 538 (4th Cir. 2006).

C.

We conclude that the adverse credibility finding is

supported by substantial evidence. The IJ and the BIA

identified specific and cogent reasons supporting this finding.

Although not all of the stated grounds necessarily withstand

scrutiny, we conclude that, on balance, substantial evidence

supports the adverse credibility determination.

The BIA concluded that Pan’s testimony regarding why Chen

could not be sterilized—resulting in the government’s decision

to sterilize him instead—was vague and unclear. Although

vagueness and lack of specificity are not factors specifically

14
listed in the REAL ID Act’s credibility determination provision,

they qualify as “other relevant factor[s]” that an IJ may

consider. 8 U.S.C. § 1158(b)(1)(B)(iii); see Shrestha, 590 F.3d

at 1040; cf. Dorosh v. Ashcroft, 398 F.3d 379, 382 (6th Cir.

2004) (“Under BIA rulings, credibility encompasses not just

consistency but also plausibility and sufficient detail.”);

Elzour v. Ashcroft, 378 F.3d 1143, 1152 (10th Cir. 2004) (same).

Pan claims that family planning officials decided to sterilize

him after it was discovered that Chen could not be sterilized by

means of a tubal ligation because of a condition Pan described

as a “skin disease” or “skin problem.” To corroborate his

story, Pan offered a photocopy of a “Fujian Women and Children

Health Center Disease Explanation Form” stating that “[b]ecause

. . . Chen has [a] serious skin disease (skin damages) on her

skin around the area where she had her operation, it is not

advisable for her to get a tubal ligation.” J.A. 249. It bears

a seal and an illegible signature. The document does not

elaborate on Chen’s “skin disease” or explain the “operation”

referenced, and it is unclear whether or if the unspecified

operation caused or exacerbated some preexisting condition.

When asked to provide details about this operation, Chen

speculated that “[i]t should be the abortion” but admitted he

was not certain. J.A. 99. The only details Pan offered

regarding Chen’s post-abortion condition were that she looked

15
pale and weak, was having difficulty walking, and had a bandage

around her stomach. On this record, the BIA could only guess at

Chen’s purported skin disease, how and when she acquired it, and

how it would render her unsuitable for a sterilization

procedure.

Next, the BIA concluded that Pan’s credibility was

undermined by his vague and inconsistent testimony regarding the

circumstances of his flight from China to the United States.

Pan testified that on the same day he received the sterilization

notice, he consulted with his family and decided to flee China.

He testified that his parents were able to immediately arrange

for a smuggler to get him out of China to the United States

where he had family in Baltimore. According to Pan, he left

home and hid in another part of Fuzhou City for two days. The

IJ and Pan then had the following colloquy:

Q. . . . [W]hen did you leave your house?

A. In the morning of November 30, 2008 . . . .

Q. And where did you go?

A. I hid[] in Fuzhou City, Mawei District.

. . .

Q. With whom did you stay?

A. Somebody.

Q. Who?

A. Just myself.

16
 Q. How is it you hid yourself? Where did you sleep?
Where did you eat? Where did you go at night?

A. I hid in the small room the entire day.

Q. In whose house was the small room located?

A. My friend helped me to arrange for that room.

Q. And who is your friend?

A. My friend, just my friend.

Q. You don’t have a name?

A. The name is Tao Wang.

Q. . . . You seem to be having difficulty, in my view,
of giving any specifics as to the name of the person
who helped you hide, and I'm wondering why. I want to
give you an opportunity to explain that.

A. Because even if I -- even when I told you this
person you would not know who this person was.

J.A. 81-82. The BIA agreed with the IJ’s conclusion that Pan’s

testimony was uncertain and unclear:

At first, [Pan] testified that he could not remember
the name of the person with whom he stayed while in
hiding. Then, he testified that . . . a friend helped
arrange the room. In his asylum application
statement, he stated that he stayed at a friend’s
house. According to [Pan’s] credible fear worksheet,
he did not mention going into hiding before leaving
China at his interview.

J.A. 9.

In response, Pan offers a plausible explanation for these

inconsistencies, suggesting that his uncertain testimony was

reasonable given the language barrier and that the IJ and BIA

simply misinterpreted his answers. An immigration judge,

17
however, is not required to accept every plausible explanation

offered by an asylum applicant. See Dankam, 495 F.3d at 122.

An applicant “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.” Majidi v. Gonzales, 430 F.3d 77, 80–81

(2d Cir. 2005) (internal quotation marks omitted). Were we

considering this testimony in the first instance, we may well

have dismissed these minor inconsistencies as simply the result

of the language barrier. Our function, however, is not to re-

weigh the evidence and come to an independent conclusion but to

determine whether the record compels us to find Pan credible.

We conclude it does not. 2

2
By contrast, the BIA’s conclusion that Pan’s testimony was
implausible to the extent he claimed his parents immediately
secured aid from a smuggler is, on this record, based on
speculation. See Jiang v. Gonzales, 485 F.3d 992, 996 (7th Cir.
2007) (reversing an adverse credibility finding “based on [the
IJ’s] own assumptions of how long it should take Chinese
residents to arrange passage to the United States,” noting that
the “Fujian province has a ‘huge’ network of smugglers that work
in concert together” and that the IJ pointed to no evidence
suggesting the applicant was incapable of securing arrangements
to leave in one day). Here, the IJ pointed to nothing in the
record suggesting that a smuggler could not be hired
immediately. This particular basis for doubting Pan’s testimony
therefore does not constitute a cogent reason for the adverse
credibility finding.

18
 D.

Finally, the BIA affirmed the IJ’s conclusion that Pan’s

corroborating documentation was unreliable and failed to

rehabilitate Pan’s credibility. “[W]hen a trier of fact is not

fully satisfied with the credibility of an applicant’s testimony

standing alone, the trier of fact may require the applicant to

provide corroborating evidence ‘unless the applicant does not

have the evidence and cannot reasonably obtain the evidence.’”

Singh, 699 F.3d at 329 (quoting 8 U.S.C. § 1158(b)(1)(B)(ii)).

An adverse credibility finding is generally fatal to an asylum

claim unless the alien proves his refugee status through

evidence independent of his own testimony. See Rusu v. INS, 296

F.3d 316, 323 (4th Cir. 2002).

The agency’s conclusion was based primarily on Pan’s

failure to authenticate the documents. “[A]uthentication

requires nothing more than proof that a document or thing is

what it purports to be and, even though the Federal Rules of

Evidence spell out various options, the rules also stress that

these options are not exclusive and the central condition can be

proved in any way that makes sense in the circumstances.” Yongo

v. INS, 355 F.3d 27, 30–31 (1st Cir. 2004); cf. Tassi, 660 F.3d

at 720-21 (explaining that the BIA may not reject corroborative

evidence solely because it does not comply with the Federal

Rules of Evidence). Other than his own discredited testimony

19
that he obtained the documents via an unknown courier who

brought the documents from China to his uncle in Baltimore, Pan

did not make any attempt to establish how he acquired the

documents or that the documents were genuine.

Notably, Pan did not avail himself of one obvious source of

corroborating evidence. As the IJ observed, Pan did not call

his uncle, who lived in Baltimore where the asylum hearing took

place, as a witness to verify that he received the documents

from China. Pan explained that his uncle could not testify

because he had to work, but Pan did not even submit an affidavit

from his uncle.

Likewise, there were no affidavits from Pan’s parents

establishing that they dispatched a courier with the documents.

See Chen v. Attorney Gen., 676 F.3d 112, 117 (3d Cir. 2011)

(concluding the BIA “properly observed that the Village

Committee document had not been authenticated by any means at

all, such as an affidavit from [applicant’s] mother as to how

the document was obtained”). Moreover, the BIA concluded some

of the documents were inherently unreliable for reasons other

than Pan’s failure to authenticate them. For example, the BIA

concluded that the sterilization notice had little probative

value because it was a photocopy of an unsigned document

allegedly issued by local officials. See Matter of H–L–H, 25 I.

& N. Dec. 209, 214 (BIA 2010) (according minimal weight to

20
documents purportedly issued by local officials that were

“unsigned and unauthenticated and fail[ed] to even identify the

authors”), abrogated on other grounds by Huang v. Holder, 677

F.3d 130 (2d Cir. 2012). Likewise, the BIA accorded little

probative value to the disease explanation form which did not

legibly identify the doctor who purportedly created the form and

set forth a confusing and “vague[] descri[ption]” of the skin

condition that rendered Pan’s wife unsuitable for sterilization.

J.A. 3. Finally, the BIA discounted the Fuzhou Surgery

Certificate, which purportedly established that an abortion was

performed, because it conflicted with Pan’s testimony regarding

how many months into her pregnancy Chen was when she had the

abortion. These determinations are supported by substantial

evidence, and the record does not compel a contrary conclusion. 3

3
Pan also contends that the BIA engaged in impermissible
fact-finding in violation of 8 C.F.R. § 1003.1(d)(3)(iv) by
identifying additional facts supporting the IJ’s determination
that the corroborating documents were unreliable. This argument
is wholly without merit. As we have previously explained, this
regulation “restricts the BIA’s ability to add new evidence to
the record, but does not prohibit the BIA from making a factual
determination upon de novo review of the record before it.” Lin
v. Mukasey, 517 F.3d 685, 692 n.10 (4th Cir. 2008) (alterations
and internal quotation marks omitted). The additional reasons
offered by the BIA to support its conclusion that Pan’s
documentation was unreliable are “properly characterized as . .
. factual determination[s] made upon de novo review of the
existing record, not as an instance of independent factfinding.”
Id. (internal quotation marks omitted).

21
 IV.

For the foregoing reasons, we deny the petition to review

the BIA’s decision affirming the denial of asylum and

withholding of removal. To the extent that Pan petitions for

review of the BIA’s denial of relief under the Convention

Against Torture, we conclude the agency’s decision is supported

by substantial evidence. The BIA reviewed the record and

reasonably found that the totality of the circumstances fails to

establish Pan would “more likely than not . . . be tortured if

removed to the proposed country of removal.” 8 C.F.R. §

1208.16(c)(2).

PETITION FOR REVIEW DENIED

22