An Qing Wu v. ATTORNEY GENERAL OF THE UNITED STATES On

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-3875
___________
AN QING WU,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A200-037-096)
Immigration Judge: Eugene Pugliese
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
December 2, 2009
Before: SLOVITER, JORDAN and GREENBERG, Circuit Judges
(Opinion filed December 16, 2009 )
___________
OPINION
___________
PER CURIAM.
An Qing Wu, a native and citizen of the People’s Republic of China, seeks review
of a final order of removal entered by the Board of Immigration Appeals (“BIA”). We
will deny the petition for review.

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I.
Wu, a twenty-six-year-old unmarried male, entered the United States via Mexico
on August 7, 2005. The government issued a Notice to Appear the next day, charging Wu
as an alien present without being admitted or paroled. Wu conceded removability as
charged, and venue over his removal proceeding was transferred, at Wu’s request, from
Texas to New Jersey. In proceedings before the Immigration Judge (“IJ”) in New Jersey,
Wu applied for asylum, withholding of removal, and protection under the Convention
Against Torture (“CAT”). Wu claimed that he suffered past persecution, and feared
future persecution, for having disseminated censored news materials over the internet.
In his written asylum application filed May 18, 2006, Wu alleged that he is from
Fujian Province, and was in the wholesale seafood and timber business beginning in
2001. In 2003, he allegedly learned from a former schoolmate named Chen how to access
“politically censored news” over the internet, including access to websites that were
blocked by the Chinese government. After Chen helped Wu install proxy software on his
computer to open blocked sites, Wu claims that he began sending censored news to
friends, particularly news about government corruption, along with Wu’s background
analysis on the corruption. Wu allegedly sent these emails from his home computer or at
“web bars” using internet access service cards.
Wu claims that on December 20, 2003, local police detained and interrogated him,
and confiscated his computer. The police allegedly discovered the proxy and questioned

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Wu as to his “source,” which Wu refused to disclose. Wu claims that the police slapped
him and released him after three days. Wu’s computer was returned to him.
Wu thereafter ceased sending the emails, and he claims that before Chinese New
Year, 2004, a police officer interrogated him as to why he was no longer doing so. One
month later, the officer allegedly again questioned Wu, and advised that Wu would “have
no more problems” if he identified the person who taught him to install and access the
proxy. The officer allegedly threatened to arrest Wu and harm his business. Wu claims
that he refused to cooperate. In the two months that followed, Wu’s business allegedly
“was going down,” and he was told by a wholesaler that the police had instructed him not
to sell timber to Wu. Wu then decided to leave China.
On April 15, 2004, Wu claims that he was arrested in Inner Mongolia, China, as he
was making his way to Russia. Wu allegedly was detained, and an officer hit Wu with his
hands. An officer also allegedly threw a water glass at Wu, with the glass breaking on
Wu’s shoulder and falling to the ground. The officer pushed Wu to the ground, and Wu’s
right elbow was cut by the broken glass. Wu claims that he did not receive proper
medical treatment for the wound. On April 30, 2004, after Wu had spent fifteen days in
detention, Wu’s father paid bail of 20,000 RMB, and Wu was released.
After returning home, Wu claims that he was interrogated by local police, who
threatened him and interfered with his business. Wu again decided to leave China, which
he did in March 2005, arriving in the United States in August 2005.

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Wu testified before the IJ on September 29, 2006. He stated that he left China
because, inter alia, “[t]here were limitations set on me, and I was tortured.” Wu testified
that the police discovered his activity of spreading censored news, leading to his
interrogation on December 20, 2003, when he was slapped in the face. Among other
things, Wu recounted his alleged first attempt to leave China, his arrest in Inner
Mongolia, and his fifteen-day detention, when he allegedly suffered the injury to his right
elbow. Wu testified that he was “under surveillance” after he returned from Inner
Mongolia, and that local police contacted Wu three times in an effort to discover his
source. Wu stated that if he returned to China, “they would monitor me and my personal
freedom would be limited and they might torture me again and send me back to the
policeman again.”
The IJ rendered an oral decision in which he rejected Wu’s credibility and denied
all relief. The IJ found Wu’s testimony “too confusing” to meet his burden of proof, and
that Wu had omitted important details and information regarding his claims. The IJ noted
that Wu failed to reveal any particular feelings regarding government corruption in China,
failed to submit copies of the purported emails he had sent, and submitted “virtually no
corroboration” for his testimony. While acknowledging the existence of a scar on Wu’s
arm, the IJ could not conclude from the evidence that the injury resulted from torture or
persecution. The IJ also found that the December 2003 and April 2004 incidents in police
custody do not rise to the level of past persecution. The IJ found Wu’s testimony “for the

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most part vague and difficult to understand and not compelling at all,” and noted that Wu
“appeared throughout the hearing to be uncomfortable, to be nervous and to not have any
narrative string to his testimony.” The IJ cited in particular Wu’s inconsistent statements
regarding the police activity after he returned from Inner Mongolia. Finally, the IJ
observed that, based on information in the State Department Country Report, “it would
appear that the actual chance of being jailed for Internet writing is extremely remote,”
making it unlikely that Wu was arrested for internet usage. The IJ also found no evidence
that Wu would more likely than not be tortured upon return to China.
The BIA dismissed Wu’s appeal, holding that the IJ’s adverse credibility
determination was not clearly erroneous. The BIA agreed with the IJ that Wu’s “vague”
testimony, combined with a lack of corroborating evidence, failed to show that he had
engaged in dissentient activity over the internet. On the basis of the reasons stated in the
IJ’s decision, the BIA affirmed the conclusions that Wu failed to offer credible testimony
to establish past persecution, a well-founded fear of future persecution, or a likelihood of
torture. Wu timely filed his petition for review in this Court.
II.
We have jurisdiction under 8 U.S.C. § 1252(a)(1) to review the BIA’s final order
of removal. When, as here, the BIA issues its own decision but affirms substantially on
the basis of the IJ’s stated reasons, we review both decisions. Chen v. Ashcroft, 376 F.3d
215, 222 (3d Cir. 2004). We must uphold the factual determinations made during

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administrative proceedings if they are “supported by reasonable, substantial, and
probative evidence on the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S.
478, 481 (1992) (quoting 8 U.S.C. § 1105a(a)(4)). We apply this substantial evidence
standard to review an adverse credibility determination. Butt v. Gonzales, 429 F.3d 430,
433 (3d Cir. 2005). An adverse credibility determination must be supported by sufficient,
cogent reasons. Id. at 434. An adverse credibility determination that is supported by
sufficient evidence is upheld unless “‘any reasonable adjudicator would be compelled to
conclude to the contrary.’” Chen, 376 F.3d at 222 (quoting 8 U.S.C. § 1252(b)(4)(B)).
Under the provisions of the REAL ID Act, which the BIA correctly noted are
applicable here, the IJ, after “[c]onsidering the totality of the circumstances, and all
relevant factors,” may base an adverse credibility determination
on the demeanor, candor, or responsiveness of the applicant
or witness, the inherent plausibility of the applicant’s or
witness’s account, the consistency between the applicant’s or
witness’s written and oral statements (whenever made and
whether or not under oath, and considering the circumstances
under which the statements were made), the internal
consistency of each such statement, the consistency of such
statements with other evidence of record (including the
reports of the Department of State on country conditions), and
any inaccuracies or falsehoods in such statements, without
regard to whether an inconsistency, inaccuracy, or falsehood
goes to the heart of the applicant’s claim, or any other
relevant factor.
8 U.S.C. § 1158(b)(1)(B)(iii).
Upon a review of the record, we find substantial evidence to support the adverse

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We note that, although this Court has not yet addressed whether the new1
credibility standard of 8 U.S.C. § 1158(b)(1)(B)(iii) is consistent with due process, we
are satisfied that Wu’s challenge to the BIA’s adverse credibility finding would fail
under the pre-REAL ID Act standard, as well.
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credibility determination. The IJ primarily noted the inconsistency in Wu’s testimony
with regard to events upon Wu’s return from his alleged first attempt to leave China. In
his asylum application, Wu stated that the police threatened him and interfered with his
business upon return. In his testimony before the IJ, Wu stated that he was put “under
surveillance” and contacted three times by the authorities. After the IJ questioned Wu
about his failure to mention in his testimony that the police had threatened him and his
business, Wu then stated that he was interrogated three times at the police station and told
that he would be imprisoned if he refused to reveal his source. The inconsistencies and
omissions in Wu’s statements about these important events – events that allegedly
compelled Wu to attempt a second departure from China – provide record support for an
adverse credibility finding. Furthermore, given the absence of corroborating record
evidence for Wu’s alleged political opinions and internet activities, Wu’s vague testimony
about his political intentions and internet activities, and the IJ’s expressed concerns about
Wu’s demeanor, we cannot conclude that any reasonable adjudicator would be compelled
to find Wu’s testimony credible.1
Wu argues that the IJ and BIA erred by “ignoring” Wu’s documentary evidence
reflecting his arrest in Inner Mongolia for an illegal border crossing and treatment for his

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Wu does not argue his claim for mandatory withholding of removal in his brief2
to this Court, and thus we deem that issue waived and do not address it.
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elbow injury. While Wu argues that this evidence corroborated his story, it does not
appear from the record that the IJ or BIA overlooked this evidence. Indeed, the BIA
expressly observed that the IJ “specifically noted” and “considered” this evidence.
Moreover, as the BIA explained, even if the IJ overstated Wu’s evidentiary omissions in
concluding that there was no corroboration for Wu’s claimed first attempt to leave China,
there is substantial evidence in the record to support the IJ’s ultimate rejection of Wu’s
claims, including the inconsistencies in Wu’s testimony, the absence of corroboration for
his alleged political opinions and internet activities, and the IJ’s adverse perception of
Wu’s demeanor.
Finally, Wu challenges the denial of his claim for CAT relief. To be eligible for a2
withholding of removal under the CAT, Wu had to show that it is more likely than not
that he will be tortured in China. See 8 C.F.R. § 208.16(c)(2); Sevoian v. Ashcroft, 290
F.3d 166, 174-75 (3d Cir. 2002). Torture is defined as the intentional infliction of severe
pain or suffering “by or at the instigation of or with the consent or acquiescence of a
public official or other person acting in an official capacity.” 8 C.F.R. § 208.18(a)(1).
Wu argues that he was tortured in April 2004 because the police threw him to the
ground, resulting in the cut on his arm, and failed to provide prompt medical treatment for
the injury. Wu claims that this “past torture” suggests a probability that he will be

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tortured again. The record, however, reflects substantial evidence for the IJ’s finding that
the April 2004 incident does not rise to the level of past persecution. See Fatin v. INS, 12
F.3d 1233, 1240 (3d Cir. 1993) (defining persecution as “threats to life, confinement,
torture, and economic restrictions so severe that they constitute a threat to life or
freedom,” and explaining that persecution “does not encompass all treatment that our
society regards as unfair, unjust or even unlawful or unconstitutional”). Wu has not
shown that he will be singled out for torture upon return to China, and the record does not
compel a conclusion contrary to the one reached by the IJ and BIA.
III.
We have considered Wu’s remaining arguments but find them without merit and in
need of no discussion. For the foregoing reasons, we will deny the petition for review.

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