M.s.c.; L.z. v. MERRICK B. GARLAND, Attorney General

United States Court of Appeals
For the First Circuit
Nos. 21-1496, 22-1602
M.S.C.; L.Z.,
Petitioners,
v.
MERRICK B. GARLAND, Attorney General,
Respondent.
PETITIONS FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Lipez, Howard, and Thompson,
Circuit Judges.
Sara Yang for petitioners in No. 21-1496. Aleksander Boleslaw
Milch and The Kasen Law Firm, PLLC on brief for petitioners in No.
21-1496.
Sherease Pratt, Senior Litigation Counsel, United States
Department of Justice, with whom Brian M. Boynton, Principal Deputy
Assistant Attorney General, Civil Division, Anthony P. Nicastro,
Office of Immigration Litigation, Civil Division, and Sheri R.
Glaser, Office of Immigration Litigation, Civil Division, were on
brief, for respondent.
Sara Yang, Yang & Sacchetti, P.C., Gilles Bissonnette,
SangYeob Kim, American Civil Liberties Union of New Hampshire, and
New Hampshire Immigrants' Rights Project on brief for petitioners
in No. 22-1602.
Sherease Pratt, Senior Litigation Counsel, United States
Department of Justice, with whom Brian M. Boynton, Principal Deputy
Assistant Attorney General, Civil Division, Anthony P. Nicastro,

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Office of Immigration Litigation, Civil Division, and Sheri R.
Glaser, Office of Immigration Litigation, Civil Division, were on
brief, for respondent.
October 24, 2023

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THOMPSON, Circuit Judge. In this consolidated appeal,
married couple M.S.C. and L.Z. ("the petitioners") seek judicial
review of two Board of Immigration Appeals ("BIA") decisions: One
affirming an Immigration Judge's ("IJ") denial of their
application for asylum, withholding of removal, and protection
under the Convention Against Torture ("CAT") and the other denying
their motion to reopen their proceedings. The basis for the
petitioners' application for relief from removal is political
persecution by Chinese officials seeking to enforce China's Family
Planning Policy (the so-called one child policy in effect when the
petitioners first entered the U.S.).1 For the reasons we explain
below, we deny both petitions.
BACKGROUND2
In March 2014, the petitioners, Chinese nationals,
entered the U.S. on B2 tourist visas. Five months later, M.S.C.
filed an application for asylum (including her husband as a rider
on her application) on the basis of China's politics, claiming she
had been subject to a forced abortion and sterilization procedure
1 A heads up that China's official "one child" Family Planning
Policy changed during the events described herein. We will
describe these changes as they arise in the travel of these cases.
2 We summarize how the petitioners' cases arrived on our bench
using the administrative records, which include the petitioners'
testimonies during the hearing before the IJ. See Adeyanju v.
Garland, 27 F.4th 25, 31 (1st Cir. 2022).

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in May 2013 after she became accidentally pregnant with her second
child.3
The petitioners received Notices to Appear from the
Department of Homeland Security in January 2015. On the day of
their initial hearing (in September 2016), represented by counsel,
M.S.C. conceded removability and sought relief from removal in the
form of asylum, withholding of removal, and CAT protection (again,
with her husband riding on her application).4 The IJ designated
China as the country of removal.
At the merits hearing in October 2018, both petitioners
-- represented by the same counsel and assisted by a Mandarin
language interpreter -- testified.5 M.S.C. stated she graduated
from college in China, married L.Z. in 2010, and gave birth to a
daughter in 2011.
In recounting the odyssey that brought the petitioners
to America, M.S.C. explained to the IJ that, in early May 2013,
she visited a doctor because, after returning from a vacation in
Japan, she "felt discomfort a lot." Tests revealed she was just
3 In addition to asylum, M.S.C. applied for statutory
withholding of removal, and withholding of removal under the CAT.
4 From here on out we will use "relief from removal" to
collectively refer to asylum, statutory withholding from removal,
and CAT protection.
5 The initial hearing in 2016 took place in New York but venue
changed to Boston for the 2018 merits hearing.

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over one month into pregnancy. M.S.C. knew the government was
forcing abortions for those in violation of the country's one child
policy enforced at that time and she was scared because she wanted
to give birth to this second baby. She asked her doctor to delay
reporting the pregnancy to the authorities as China law required.
When M.S.C.'s supervisor at work approached her to say M.S.C. had
to have an abortion because of the country's policy and the effect
her second pregnancy would have on the company, M.S.C. knew the
doctor had not obliged her request.
On May 13, family planning officials showed up at her
work, held her arms and "dragged" her outside and into a white
van. At this point in M.S.C.'s testimony, the hearing transcript
indicates she offhandedly remarked: "I'm sorry. I'm emotional.
Sorry." The IJ responded, "Okay. Do you need a minute or two to
gather your thoughts?" to which M.S.C. replied, "I'm okay" and
proceeded with describing the forced abortion procedure.
Continuing with her recounting of events, she said the seizing
officials took her to Beicheng Hospital. She "struggl[ed] . . .
with all [her] might," but "[t]hey held [her] down on the bed and
took [her] pants off . . . and tie[d her] hands and feet on the
bed." M.S.C. described the procedure to the IJ, which she
remembered lasting about an hour:
So, there was a big light above me, and that was
turned on. And so, there was a mask put over me. I
remember I was not really that conscious. But I still

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felt very cold. And I felt there was some kind of
instrument that was stuck into -- inserted in my vagina
to open it. And then I heard some of machines like mmm,
mmm, that kind of sound. And I felt that something very
cold enter into my private parts.
And I felt there was something that was moving out.
And I felt that especially on my lower abdomen. The
lower abdomen and on the two side that something is
hanging down. I felt as though I was going to have a
bowel movement. So, at the time I couldn't even tell
that whether it was my tears or my sweat. And I felt
that my body is being torn apart.
And it was -- there was a little while after that,
and I felt there was another substance or object that
entered my body. It felt as though that it was being
dragged outside, and also a scraping. It was scraping
to bring it outside. Bring it out. Then a little while
passed, and I -- this -- the sound of the machine was
turned off. And my vagina then was dilated, and it was
relaxed. At that time, they removed my mask. And I was
conscious for a few minutes, because that light was
really too bright. Very, very bright. And I saw
somebody in the -- at the basin and somebody white in
color, and something dark red inside the basin.
Everything I felt. That's the end.
In addition to undergoing a forced abortion procedure, "an
[intrauterine device] IUD was inserted" into M.S.C. without her
consent. The nurse told M.S.C., "You will not get pregnant again,
as you will not make another mistake." According to M.S.C., the
IUD fell out a month later, but she told no one except her husband.
In the weeks following the procedure, M.S.C. sustained
bleeding, inflammation, and a lesion on her cervix for which she
sought treatment. Nightmares plagued M.S.C. "almost every night
for quite some time" and she became unable to look after her
daughter, so she sent her child to live with her parents. When
M.S.C. and L.Z. traveled to the U.S., their daughter remained in

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China living with M.S.C.'s father. M.S.C. testified that "a lot
of kids in China . . . are raised up by their grandparents" because
their lives after retirement "are a little boring" and many had
only one child but wanted to have more.
Since arriving in the U.S. in March 2014, M.S.C. worked
"in a biology lab . . . on DNA" and tried (unsuccessfully) to have
another child. M.S.C. did become pregnant in 2015, but it turned
out to be an ectopic pregnancy that necessitated termination.6
M.S.C. also testified about consulting with an obstetrics and
gynecology ("OB/GYN") doctor about her fertility options and she
was told that she may be too old (at around 40 years old) to try
in vitro fertilization.
At their hearing, the IJ questioned M.S.C. and L.Z. about
whether they told M.S.C.'s medical providers in the U.S. about the
forced abortion. Each petitioner answered in the negative. When
asked why she hadn't disclosed this information, part of M.S.C.'s
answer was clear (because it "was an experience [she] really
[didn't] want to talk about"). But part of the answer was not so
clear ("because my ignorance" and "she did ask me questions [about
how many times I had been pregnant] . . . [s]o I did not answer
6 "An ectopic pregnancy occurs when a fertilized egg
implants and grows outside the main cavity of the uterus . .
. most often . . . in a fallopian tube." Mayo Clinic,
https://www.mayoclinic.org/diseases-conditions/ectopic-
pregnancy/symptoms-causes/syc-20372088.

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questions like that"). There was no further probing from the IJ
about what M.S.C. meant by her answer. L.Z., for his part, stated
that he had not told the doctor about the forced abortion when he
accompanied his wife to her appointments "because of our status at
that time." When the IJ inquired whether they had told the doctor
that M.S.C. had had an IUD, M.S.C. said they "mentioned" it
"briefly" to the medical provider but then added, "[i]t doesn't
mean that she write it down."
M.S.C. also testified that she does not want to return
to China because she does not want the same procedure done to her
again. At the time M.S.C. gave her testimony, her understanding
of China's family allowance policy was that couples could have a
second child only if both the husband and wife were only children,
and M.S.C. has a sister.
M.S.C. and L.Z. provided several documents in support of
their application for relief from removal, including a medical
certificate reflecting an abortion procedure performed in May 2013
and the placement of the IUD, a medical certificate dated one month
later reflecting cervical erosion, letters from M.S.C.'s sister
and friend describing the change in M.S.C.'s demeanor after the
forced abortion, letters from L.Z.'s mother and co-worker
describing the changes in his behavior and affect after the forced
abortion, a State Department country conditions report from 2017,
and two articles about forced abortion practices in China. At the

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IJ's request, M.S.C. showed the IJ and the government's attorney
a document she brought with her to the hearing which she said was
the original abortion medical certificate. The IJ described it on
the record only as a "certificate taped to an eight and half by
eleven sheet of paper."
The IJ also asked to see M.S.C.'s medical records from
her providers in the U.S., but M.S.C. explained she had not brought
any of those medical records with her to court because she "didn't
think that they were was [sic] such a big connection between the
report and this procedure and investigation of this incident."
L.Z. told the court that he had all the records from the ectopic
pregnancy termination at his home but had not brought them to court
"[b]ecause we did not realize that this has something to do with
our asylum application." The IJ never asked the petitioners to
submit the records post hearing, nor did counsel for the
petitioners do so.
In a written decision rendered two days after the
hearing, the IJ denied the petitioners' application for relief
from removal, concluding they had failed to meet their burden of
proof because M.S.C.'s testimony was not credible, and the
petitioners lacked properly authenticated corroborating evidence
of the forced abortion and sterilization procedure. Specifically,
the IJ labeled M.S.C.'s testimony about what she had disclosed (or
not) to her U.S. medical providers about her medical history

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"completely implausible," citing in support several aspects of the
evidence disclosed during the hearing: M.S.C.'s "educational
levels [and] the fact that [petitioners] were trying to have
additional children," her ongoing exploration of fertility
treatment options, the risks associated with the termination of an
ectopic pregnancy which would warrant full disclosure of her prior
reproductive healthcare to a treating physician, and the vagueness
of her testimony about "events leading up to her forced abortion
in China." The IJ also dinged M.S.C. and L.Z.'s credibility for
not bringing M.S.C.'s U.S. medical records, calling their reason
for not doing so not "adequate," and further noting their failure
to request a continuance to provide this information relevant to
their petition. The IJ found it "far more plausible . . . that no
such forced abortion in China had ever occurred," and suggested
that M.S.C.'s "ability to provide detail on the [feel and sound of
the abortion] could just as easily have been from her knowledge of
the procedure" terminating the ectopic pregnancy. Sounding off on
the medical certificates which the petitioners provided, the IJ
found them "not authenticated in any manner" and so "entitled to
little evidentiary weight."
Continuing, the IJ deemed the letters submitted from
relatives and friends "inconsistent" with M.S.C.'s testimony
because the letters included details about the aftermath of the
forced abortion and sterilization procedure that M.S.C. had not

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relayed during her testimony, offering examples such as who picked
her up from the hospital, her physical state as she left the
hospital, and the number of follow-up medical appointments she
attended after that day. The IJ further explained that the letters
were not "afforded sufficient weight to meet the [petitioners']
burden" because the contents were "extremely vague," and the family
members had "a personal interest in the outcome of the case"
(though she did not explain what their personal interest would
be).
The IJ went on to make findings about M.S.C.'s demeanor
while testifying: "[S]uspect," she called it, because when M.S.C.
became emotional she did not accept the IJ's offer for a break in
her testimony "as if she was attempting solely to have the Court
note her emotion for the record;" and evasive too because she did
not give a "straightforward answer" about why, if M.S.C. told her
doctor in the U.S. about the IUD, M.S.C. would not think the doctor
had written this detail in M.S.C.'s records. Then, commenting on
the way M.S.C. handled being questioned during the hearing, the IJ
observed that M.S.C. answered her own counsel's inquiries quickly
but "took far longer pauses" before answering questions from the
government's attorney or the judge.
In conclusion, the IJ found the petitioners did not
establish their fear of future persecution if removed from the
U.S. and forced to return to China because the country conditions

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report reflected that China had changed its national Family
Planning Policy to allow married couples to have two children and
the petitioners had not "satisfactorily demonstrated that they
would be subject to harm" if they did indeed have "another child."
The petitioners appealed the IJ's denial of relief from
removal to the BIA, challenging the IJ's adverse credibility
finding as based on the IJ's improper personal assumptions and on
the IJ's erroneous conclusions about the value of the corroborating
evidence.7 Unconvinced, the BIA dismissed the appeal, concluding
the IJ's adverse credibility finding was not clearly erroneous
because the IJ based her finding on "specific and cogent reasons"
and her conclusions were "a permissible view of the evidence."8
Regarding the corroborative evidence the petitioners submitted to
the IJ, the BIA said the IJ "appropriately afforded the [medical]
certificates little weight" because each was a single page document
not properly authenticated pursuant to the governing regulation,
adding that M.S.C. had not provided any explanation about why the
certificates had not been authenticated. The BIA was dismissive
7 The petitioners also argued that they were entitled to
asylum on discretionary and humanitarian grounds, and eligible for
withholding of removal and protection under the CAT.
8 The BIA noted it was not relying on the IJ's finding about
the length of M.S.C.'s pauses before answering the IJ's questions,
which the petitioners had argued was not supported by any specific
examples of pauses from the hearing.

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of the letters submitted in support of M.S.C. and L.Z., discounting
them because they were written by interested parties.
In December 2021, M.S.C. and L.Z. filed a petition for
review of the BIA's decision with this court, raising challenges
we'll discuss momentarily in our analysis. While this petition
for review was pending, the petitioners obtained new counsel, who
filed with the BIA a motion to reopen the proceedings based on new
evidence obtained to corroborate the petitioners' claims for
relief from removal.9 Thereafter, the BIA denied the motion as
untimely filed and the petitioners filed a second petition for
review (asking us to reverse the BIA's denial of their motion to
reopen), which we consolidated with the first case, and here we
are.
DISCUSSION
With the details from the factual and procedural record
spelled out, we proceed to consider the petitioners' arguments for
9 There were actually a few things happening over the same
time period. The petitioners filed a renewed I-589 application
for asylum in December 2021, at about the same time as they filed
their motion to reopen. This court heard oral argument for the
first petition for review after the petitioners had filed their
motion to reopen with the BIA but before the BIA denied the motion.
Following the March 2022 oral argument on the initial petition for
review, this court referred the case to its Civil Appeals
Management Program (aka "CAMP"). The petitioners notified the
court approximately two months later (while the motion to reopen
was still pending before the BIA) that the case had not settled,
returning the case to our bench to decide.

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each of the petitions for review, beginning with the motion to
reopen.
Motion to Reopen
When the petitioners sought to reopen their proceedings
before the BIA pursuant to 8 U.S.C. § 1229a(c)(7), they argued
they had new evidence to present that had not been available at
the time of the asylum hearing because they had received
ineffective assistance of counsel from the attorney they initially
hired to represent them through their asylum process. The new
evidence included psychological evaluation reports diagnosing
M.S.C. with Major Depressive Disorder and Post-traumatic Stress
Disorder ("PTSD") and summarizing three therapy sessions, the
ectopic pregnancy record, M.S.C.'s infertility treatment records,
notarized medical certificates from China including the
certificate for the abortion and IUD placement, and a certificate
reflecting a diagnosis for depression and anxiety following the
forced abortion procedure.10 The petitioners acknowledged the
10 When a petitioner moves to reopen proceedings based on
ineffective assistance of counsel, the petitioner must include the
following documents:
(1) an affidavit explaining the petitioner's agreement
with counsel regarding legal representation; (2)
evidence that counsel has been informed of the
allegations of ineffective assistance and has had an
opportunity to respond; and (3) . . . a complaint against
the attorney filed with disciplinary authorities or
. . . an explanation for why such a complaint has not
been filed.

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statutory deadline of 90 days from the entry of a final
administrative order, see 8 U.S.C. § 1229a(c)(7)(A), (C)(i), but
argued they were eligible for equitable tolling of this deadline
(see infra n.15).11
In July 2022, the BIA denied the motion as untimely,
summarily concluding that the petitioners had neither shown their
eligibility for an exception to the 90-day statutory deadline nor
that their situation was so exceptional as to warrant sua sponte
reopening. The BIA did spill some ink, however, doubling down on
its prior conclusions that the record amply supported the IJ's
adverse credibility determination, especially given the
petitioners' admitted failure to tell M.S.C.'s medical providers
in the U.S. about the forced abortion in China. According to the
BIA, the psychological reports explaining why M.S.C. would not
have disclosed this traumatic experience to her new medical
provider despite what it apparently viewed as its relevance to her
Chedid v. Holder, 573 F.3d 33, 35 (1st Cir. 2009) (citing In re
Lozada, 19 I. & N. Dec. 637, 639 (B.I.A. 1988)); see also id. at
35 n.4 (acknowledging one former attorney general's modification
of these requirements had been revoked by the successor attorney
general). Here, the petitioners submitted these required
documents with their motion to reopen, including their former
attorney's letter refuting their allegations of ineffective
assistance at their 2018 asylum hearing.
11 There is no indication in the administrative record that
the government filed an objection to this motion to reopen.

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attempts to have another child were "unpersuasive." In the BIA's
words:
[C]onsidering her college education, sophisticated
employment as a biology lab DNA researcher, as well as
her demonstrated efforts to become pregnant . . . [also]
undermining her credibility [is her testimony] that she
informed her OBGYN that Chinese authorities inserted an
IUD in her, but remained unwilling to divulge the alleged
forced abortion . . . . Moreover, it defies logic that
mental health issues precluded the lead respondent from
sharing relevant medical information with her physician,
given that she readily informed her attorneys and the
[IJ] of her alleged forced abortion.
In addition, the BIA concluded the notary certificates for the
medical records from China did not "satisfy the authentication
requirements [of] 8 C.F.R. § 287.6," but did not explain why. The
BIA also commented that none of the exhibits submitted in support
of the petitioners' motion to reopen demonstrated that they were
prejudiced by their prior counsel's representation.
Before us with their challenge to the BIA's denial of
their motion to reopen, the petitioners claim the BIA was wrong on
four points: (1) that the notarial certificates for the abortion
and sterilization record were insufficient for authentication
purposes; (2) that the psychological reports were insufficient to
explain why the petitioners had not told M.S.C.'s medical provider
in the U.S. about the forced abortion; (3) that the petitioners
were not entitled to a sua sponte reopening of the proceedings;
and (4) that the petitioners had not addressed prior counsel's
refutations of their ineffective assistance of counsel claims.

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We generally review the BIA's denial of a motion to
reopen for abuse of discretion, finding "an abuse of discretion
only where the petitioner shows that the BIA 'committed a material
error of law or exercised its authority arbitrarily, capriciously,
or irrationally.'" Garcia Sarmiento v. Garland, 45 F.4th 560, 563
(1st Cir. 2022) (quoting Adeyanju v. Garland, 27 F.4th 25, 51 (1st
Cir. 2022)).12 But before we can consider the merits of the
petitioners' challenge to the denial of their motion to reopen, as
the government points out, we have a timing hurdle which implicates
our ability to exercise jurisdiction over any of the petitioners'
arguments in this aspect of the consolidated appeal. With few
exceptions not relevant here, a motion to reopen must "be filed
12 The petitioners acknowledge this standard of review but
also assert that this court reviews the ineffective assistance of
counsel part of the motion de novo because ineffective assistance
claims arise from the due process clause of the Fifth Amendment.
The cases they cite for support, however, do not back this asserted
shift in the standard of review for their pending petition for
review. See Hernandez Lara v. Barr, 962 F.3d 45, 53-54 (1st Cir.
2020) (stating de novo review applies to examining claim petitioner
was denied statutory right to counsel when IJ denied request to
continue a hearing date so petitioner could retain counsel);
Saakian v. INS, 252 F.3d 21, 24-27 (1st Cir. 2001) (holding BIA
abused its discretion by denying review of timely filed motion to
reopen based on ineffective assistance of counsel -- ineffective
assistance claim was not considered on the merits). More to the
point, here the petitioners' challenge to the denial of their
motion to reopen does not reassert the claim they made to the BIA
that the ineffective assistance of prior counsel presented an
extraordinary circumstance worthy of reopening the proceedings
(focusing instead on the BIA's conclusion that they had not
addressed their prior counsel's refutation of their ineffective
assistance claim).

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within 90 days of the date of entry of a final administrative order
of removal." 8 U.S.C. § 1229a(c)(7)(C)(i). The petitioners filed
their motion almost 180 days after the BIA dismissed their appeal.
And the only argument they make to us to address the undisputedly
untimely filed motion is that the BIA's "refusal to grant sua
sponte reopening must be vacated" because the BIA made legal errors
(identified in their briefing as failing to explain why the Chinese
medical certificates were not properly authenticated and why the
American mental health records were inadequate to rebut the adverse
credibility determination) when it denied their motion to reopen.13
13 We pause for a quick aside on equitable tolling. When it
comes to motions to reopen, we have previously assumed without
deciding that equitable tolling may be applicable when a movant
can show they have diligently pursued their rights but "some
extraordinary circumstance stood in [their] way." Molina v. Barr,
952 F.3d 25, 30 (1st Cir. 2020) (quoting Neves v. Holder, 613 F.3d
30, 36 (1st Cir. 2010)). However, we have not so definitively
ruled. Quiroa-Motta v. Garland, 993 F.3d 25, 27 & n.1 (1st Cir.
2021) (quoting Molina, 952 F.3d at 30). See also Tay-Chan v. Barr,
918 F.3d 209, 214 (1st Cir. 2019). As such, "whether . . . motions
[to reopen] may be equitably tolled at all remains an 'open
question.'" Molina, 952 F.3d at 30 (quoting Pineda v. Whitaker,
908 F.3d 836, 841 (1st Cir. 2018)).
The petitioners asserted below that they were entitled to
equitable tolling of the 90-day deadline but do not reassert this
argument before us. They briefly mention equitable tolling in the
section of their brief summarizing the relevant laws but do not
articulate any argument as to why the BIA's conclusion that they
did not adequately establish an exception to the deadline was
wrong. As a result, any contentions about the application of
equitable tolling are waived. See Viscito v. Nat'l Planning Corp.,
34 F.4th 78, 87 n.14 (1st Cir. 2022) (failure to develop an
argument in opening briefing to this court results in waiver).

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"When a motion [to reopen] falls outside of the timing
and number restrictions imposed by the [Illegal Immigration Reform
and Immigrant Responsibility Act of 1996] and does not fit into
one of the statutory exceptions, the only way for the petitioner
to reopen proceedings is" to convince the BIA to "reopen them sua
sponte, i.e., 'on its own motion' (nomenclature that we admit is
confusing)." Thompson v. Barr, 959 F.3d 476, 480 (1st Cir. 2020)
(citing Lemus v. Sessions, 900 F.3d 15, 18 (1st Cir. 2018)). "The
BIA will only grant a motion sua sponte if it is 'persuaded that
the respondent's situation is truly exceptional.'" Id. (quoting
In re G-D-, 22 I. & N. Dec. 1132, 1134 (B.I.A. 1999)). Even then,
this court has limited jurisdiction: We will only "review
constitutional claims or errors of law that arise in motions to
reopen sua sponte," and if we conclude "the BIA's denial of a
motion to reopen rests on a legal error" we will "'remand to the
BIA so it may exercise its authority against the correct legal
background,'" id. at 483 (quoting Bonilla v. Lynch, 840 F.3d 575,
588 (9th Cir. 2016)), because an error of law is an abuse of
discretion, id. at 480 (citing Cabas v. Barr, 928 F.3d 177, 181
(1st Cir. 2019)).
Here, while the petitioners' skeletal arguments about
the BIA's refusal to reopen sua sponte are labeled as "legal
errors," they actually only focus on their contentions that the
BIA did not provide sufficient explanation about how the newly

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proffered medical records were inadequately authenticated or not
worthy of meaningful consideration rather than on how the BIA's
rejection of these new records was an error as a matter of law.
Moreover, as the government points out, the petitioners did not
actually ask the BIA to reopen sua sponte though it is apparent
the BIA understood them to do so when, in its denial of the
petitioners' motion, it noted that "the respondents have not
established an exceptional situation warranting sua sponte
reopening." As such, the petitioners have not provided us with
enough analysis to be able to conclude that the BIA's decision
criticizing the new evidence was legal error.
Given the petitioners' motion to reopen was untimely
filed and they have not shown the BIA committed legal error and
thus abused its discretion when it declined to exercise its
discretion to reopen sua sponte, we move on to the petitioners'
initial petition for review challenging the agency's14 denial of
their application for relief from removal.
Application for Relief from Removal
The petitioners contend the BIA was wrong to deny their
claims for asylum, withholding of removal, and CAT protection.
They focus most of their argument energy on why they say the BIA
14 We use "the agency" to refer to the IJ and the BIA
collectively. See Loja-Tene v. Barr, 975 F.3d 58, 60 n.1 (1st
Cir. 2020).

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erred in adopting and affirming the bulk of the IJ's decision.
Before we delve into examining the petitioners' particular
challenges, it will be helpful to set forth the legal landscape
which will govern our review.
Asylum protects individuals from removal who "can
establish persecution on account of a legally protected
ground" -- race, religion, nationality, membership in a particular
social group, or political opinion. Aguilar-De Guillen v.
Sessions, 902 F.3d 28, 33 (1st Cir. 2018) (citing Albathani v.
INS, 318 F.3d 365, 373 (1st Cir. 2003); 8 U.S.C. § 1158(b)(1);
§ 1101(a)(42)(A); 8 C.F.R. § 208.13)).15 Generally, "[t]o show
that the circumstances the applicant endured constitute
15 This court has recognized that those who are "'forced to
abort a pregnancy' are presumptively entitled to asylum." Wen
Feng Liu v. Holder, 714 F.3d 56, 58 (1st Cir. 2013) (quoting 8
U.S.C. § 1101(a)(42)(B)). Further, the Immigration and
Nationality Act defines refugee in part as follows:
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.
8 U.S.C. § 1101(a)(42). Because the IJ found M.S.C.'s abortion
assertion not credible, this statutory presumption was not
afforded to her.

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- 22 -
persecution for purposes of asylum relief, [they] must show a
certain level of serious harm (whether past or anticipated), a
sufficient nexus between that harm and government action or
inaction, and a causal connection to one of the statutorily
protected grounds." Id. (quoting Martínez-Pérez v. Sessions, 897
F.3d 33, 39 (1st Cir. 2018)). "If a petitioner can prove [they]
suffered past persecution while in [their] home country, a
rebuttable presumption that [their] fear of future persecution is
well-founded is triggered." Id. (citing 8 C.F.R. § 208.13(b)(1)).
"Without past persecution, an asylum applicant can still show a
well-founded fear of future persecution by showing that [they]
genuinely fear[] future persecution and that [their] fears are
objectively reasonable." Id. (quoting Martínez-Pérez, 897 F.3d at
39). In contrast, to prove the petitioners' claim for statutory
withholding of removal under the Immigration and Nationality Act,
§ 241(b)(3), they must show a clear probability of persecution, a
tougher standard than asylum's well-founded fear of persecution.
See Loja-Tene v. Barr, 975 F.3d 58, 62 (1st Cir. 2020); 8 C.F.R.
§ 208.16(b).
And for its part, Article 3 of the CAT provides that
"the United States has an obligation under international law not
to 'expel, return (refouler) or extradite' a person to a country
where there are 'substantial grounds for believing that [they]
would be in danger of being subjected to torture.'" Aguilar-De

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- 23 -
Guillen, 902 F.3d at 36 (quoting 8 C.F.R. § 208.16(c)(4)). To
establish entitlement to protection pursuant to Article 3 of the
CAT, an applicant "must show [they are] 'more likely than not' to
be tortured if removed to a particular country." Id. (quoting 8
C.F.R. § 208.16(c)(4)). "The torture must be 'inflicted by or at
the instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity.'" Id.
(quoting 8 C.F.R. § 208.18(a)(1)).
When this court reviews the agency's decision to grant
or deny applications for relief from removal, we recognize that
"the IJ and BIA have different, but sometimes overlapping, roles."
Adeyanju, 27 F.4th at 33. The BIA reviews the IJ's findings of
fact for clear error only, id. (citing 8 C.F.R. § 1003.1(d)(3)(i)),
and the IJ's legal conclusions as well as the IJ's exercise of
discretion and judgment de novo, id. (citing § 1003.1(d)(3)(ii)).
When the BIA adopts and affirms an IJ's decision "while adding its
own gloss," Gomez-Abrego v. Garland, 26 F.4th 39, 44-45 (1st Cir.
2022) (quoting Martínez-Pérez, 897 F.3d at 39), the court reviews
both decisions. The court examines "the IJ's findings of fact
relied on by the BIA in support of its decision for substantial
evidence, meaning we accept the findings 'as long as they are
supported by reasonable, substantial and probative evidence on the
record considered as a whole,'" Aguilar-De Guillen, 902 F.3d at 32
(quoting Singh v. Holder, 750 F.3d 84, 86 (1st Cir. 2014))

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- 24 -
(emphasis ours), "and not merely of isolated pieces of it," Cuesta-
Rojas v. Garland, 991 F.3d 266, 271 (1st Cir. 2021). We "reject
the IJ's findings," only when "the record compels a contrary
outcome." Aguilar-De Guillen, 902 F.3d at 32-33 (citing Thapaliya
v. Holder, 750 F.3d 56, 59 (1st Cir. 2014)).
Adverse Credibility Determination
We'll start with reviewing the petitioners' contentions
about the agency's adverse credibility determination because the
petitioners' challenge to the agency's decisions primarily focuses
on the bases for this finding and this finding then formed the
basis for the agency's rejection of their application for relief
from removal. Credible, specific testimony alone can support the
grant of asylum, whereas a determination that an asylum seeker's
testimony is untenable is a tougher hurdle to overcome. See
Perlera-Sola v. Holder, 699 F.3d 572, 577 (1st Cir. 2012); 8 U.S.C.
§ 1158(b)(1)(B)(ii). That is so because we generally "accord
significant respect to . . . witness credibility determinations"
in recognition that "the IJ has the best vantage point from which
to assess the witnesses' testimonies and demeanors." Ru Xiu Chen
v. Holder, 579 F.3d 73, 79 (1st Cir. 2009). We will not accord
deference, however, to the agency's findings or conclusions that
"are based on inferences or presumptions that are not reasonably
grounded in the record, viewed as a whole, or are merely personal
views of the immigration judge." Cordero-Trejo v. INS, 40 F.3d

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- 25 -
482, 487 (1st Cir. 1994) (internal citation omitted); see Sok v.
Mukasey, 526 F.3d 48, 53 (1st Cir. 2008) (citing this principle
from Cordero-Trejo after REAL ID Act of 2005 enacted).
Personal assumptions and expectations are what the
petitioners argue the agency relied upon to justify its sweeping
negative credibility finding. The petitioners assert that these
personal views about how doctor-patient relationships should work
lack record support and infected the agency's rationale for
concluding the petitioners (1) would have told M.S.C.'s medical
providers in the U.S. about the forced abortion experience if this
trauma had actually occurred, and (2) could not have realistically
thought the medical providers would not have made a note of her
prior IUD if the petitioners had disclosed this part of the
experience. Also lacking record support was the IJ's odd notions
of what constitutes an acceptable demeanor when speaking about
traumatic historical experiences (recall M.S.C. declined the IJ's
invitation to take a break after she became emotional during her
testimony causing the IJ to find her story fishy and suspicious).
The petitioners contend the agency focused too narrowly on their
testimony about what they did or did not tell M.S.C.'s medical
providers in the U.S. to the exclusion of M.S.C.'s description of
her forced abortion and the state-mandated contraception procedure
she experienced. The petitioners emphasize here, as they did
before the BIA, that language and cultural barriers, as well as a

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- 26 -
desire to avoid reliving their traumas, naturally affected their
communication with both the IJ and the medical providers.16
The government, for its part, counters that the
petitioners cannot prevail on their petition for review because
the record does not compel the positive credibility determination
they prefer.
After reviewing the IJ's grounds for the adverse
credibility determination as well as the BIA's adoption of most of
these grounds (with additional gloss), we acknowledge up front
that we are troubled by some aspects of the agency's reasoning and
explanations, which we'll touch upon briefly in a moment. That
said, because we are constrained by our deferential standard of
review, we ultimately conclude (after considering the entire
record before the agency at that time) that the credibility finding
here was "supported by reasonable, substantial and probative
evidence on the record" and that the record does not compel a
16 In their brief to the BIA, the petitioners asserted that
[t]he IJ was dissatisfied with [M.S.C.]'s response based
on her own assumptions regarding the extent to which a
patient should be able to negotiate his relationship
with his physician ([citation to hearing transcript]).
Yet, not all patients are graced with the same level of
articulation, poise, and sense of empowerment with
respect to their relationships with their physicians
that the IJ seemed to demand, especially in the face of
language and cultural barriers.

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- 27 -
contrary result. Aguilar-De Guillen, 902 F.3d at 32-33 (quoting
Singh, 750 F.3d at 86). We explain.
The petitioners have characterized the IJ's bases for
the adverse credibility finding as impermissible assumptions about
the doctor-patient relationship. To be sure, the IJ deemed
M.S.C.'s testimony about what she had and had not discussed with
her medical providers in the U.S. "completely implausible" given
M.S.C.'s advanced education, her scientific background, and her
desire to have more children, thereby seeming to reason that any
person in M.S.C.'s shoes would surely have offered to any physician
providing her with ongoing reproductive healthcare all relevant
information about her reproductive and abortion history. This
conclusion was premised upon the record evidence. Remember,
according to M.S.C., she wanted another child so much so that she
and her husband had fled China's one child policy to effectuate
this goal, leaving behind, in the process, their daughter. And
the IJ had heard about M.S.C.'s persevering with her attempts to
conceive naturally after being told by a doctor that she is "quite
old," and no longer a candidate for in vitro fertilization. Plus,
M.S.C. had experienced an ectopic pregnancy ending in its
termination, yet that event had not prompted her to fully disclose
her abortion history to her doctor.
Handed this recitation of events, the IJ repeatedly
attempted to gain some clarity about what the petitioners actually

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- 28 -
told the U.S. medical providers, but the transcript shows M.S.C.
responded with vague and confusing answers, notwithstanding that
at the outset of the hearing, the IJ provided a thorough
explanation about how the hearing would proceed, including that
"[i]f you don't understand one of [the attorney's] questions, don't
guess at what it is that they mean. Just tell me you don't
understand the question, and we'll find a better way to phrase it
so that you do understand." Despite this explanation, M.S.C.'s
answers were, at times, baffling. For example, the IJ asked M.S.C.
whether "the doctor ask[ed] you about your history of how many
children you've had and how many times you've been pregnant?" to
which M.S.C.'s response is captured as "She did ask me questions
regarding this. So, I did not answer questions like that." When
the IJ asked M.S.C., "is there something about your meeting with
[the doctor involved with the ectopic pregnancy diagnosis and
termination] that makes you think she didn't write [the prior IUD
insertion] down?" M.S.C. explained, "Because after she told me
about the ectopic pregnancy, maybe because it was -- we were still
hoping that we could keep the child. But she explained it to us.
She said that you have to do surgery as soon as possible otherwise
it would be very, very dangerous." Viewing the record in whole we
cannot conclude that this testimony would not support the inference
inherent in the IJ's reasoning and credibility finding, to wit:
Given M.S.C.'s fervent desire and commitment to bearing another

-- 28 of 42 --

- 29 -
child, it would be reasonably expected that each interaction M.S.C.
had with health professionals would be geared towards achieving
the goal of conception, including telling her doctor about all
past medical incidents that might impact her ability to conceive.
Turning briefly to the demeanor evidence that accounted
in part for the IJ's negative credibility determination: Recall
that the IJ found that M.S.C. had faked emotion (for the benefit
of the record reflecting her emotional state) based on M.S.C.
remarking at one point during her testimony that she was emotional,
but then declined the IJ's offer of a break from testifying.
M.S.C. says, with an argument that has some force, that the
"negative inference" from this declined invitation doesn't make
sense. We note that the hearing transcript does not provide any
clues as to M.S.C.'s affect or behavior or body language or
gestures at the moment of this single exchange. So we are left in
the dark about what M.S.C.'s demeanor may have communicated when
the IJ took umbrage with M.S.C.'s response. Nor does the IJ
explain her reasoning for why she chose to draw the adverse
inference that M.S.C. was trying to manipulate how the IJ perceived
her.17 Nevertheless, given the deference we owe to the fact finder
as the first-hand witness of the petitioner's demeanor, Ru Xiu
17 Was M.S.C. sobbing at this moment? Were her eyes full of
tears? Was she choked up? Or stoic? The record tells us nothing.

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- 30 -
Chen, 579 F.3d at 79, the lack of detail in the record cuts in the
IJ's favor -- there is nothing in the cold record that compels us
to make a contrary inference on this point.
As we said before, aspects of petitioners' hearing give
us pause in affirming the agency's credibility finding. We are
appropriately sensitive to the petitioners' point about the
intrinsic difficulties of communicating a traumatic experience.18
We are also mindful of the cultural, linguistic, and immigration
considerations which this court has previously indicated are
important to keep in mind. See Diaz Ortiz v. Garland, 23 F.4th 1,
23 (1st Cir. 2022) (acknowledging the impact a language barrier
can have on a petitioner's testimony during a hearing); id. at 24
18 Research suggests that trauma survivors have a plethora of
reasons why they may choose to share or not to share a traumatic
experience even when withholding the information can be
detrimental to their legal claims. See Becky L. Jacobs,
Perpetuating Persecution: Mental Health and Psychosocial Barriers
to U.S. Immigration, 27 Tex. J. C.L. & C.R. 1, 9 (2021) ("Case
studies indicate that decision-makers in immigration processes
often fail to understand how the experience of trauma and the
symptoms of its psychological distress can impact the
communications and memories of applicants." (citing Zachary Steel,
Naomi Frommer & Derrick Silove, Part 1--The Mental Health Impacts
of Migration: The Law and its Effects: Failing to Understand:
Refugee Determination and the Traumatized Applicant, 27 Int'l J.L.
& Psychiatry 511, 516-17, 523 (2004))); Sabrineh Ardalan,
Constructive or Counterproductive? Benefits and Challenges of
Integrating Mental Health Professionals into Asylum
Representation, 30 Geo. Immigr. L.J. 1, 7 (2015) ("Without the
support of mental health professionals, asylum seekers may, for
reasons related to their trauma, not disclose the entirety of the
human rights abuses they have . . . experienced, resulting in
omissions that could prove detrimental to their legal claims.").

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- 31 -
(citing 8 U.S.C. § 1158(b)(1)(B)(iii)) (requiring credibility
determinations to consider "the totality of the circumstances, and
all relevant factors . . ."); Hoxha v. Gonzales, 446 F.3d 210,
219-20 (1st Cir. 2006) (considering whether a language barrier
resulted in the evidentiary inconsistency relied on by an IJ to
support an adverse credibility finding); Cordero-Trejo, 40 F.3d at
490 (considering cultural background of petitioner and family
members when evaluating one of the bases for adverse credibility
determination); cf. Khattak v. Holder, 704 F.3d 197, 203 (1st Cir.
2013) (including cultural constraints in assessment of asylum
applicant's internal relocation options). Some of these cultural
and language considerations seem to have been in play here. For
instance, when the IJ asked M.S.C., "it never occurred to you to
mention the first abortion that you had?" M.S.C. replied, "Yes. I
think maybe one of the reasons because my ignorance, and the other
reason could be that that was an experience I really don't want to
talk about." When the IJ asked L.Z. why he had not told his wife's
doctor about the forced abortion in China when they learned about
the ectopic pregnancy he replied, "[b]ecause of our status at that
time." Yet, based on the IJ's credibility determination we can
only gather that she did not deem cultural differences or
linguistic barriers as accounting for the inconsistencies she
perceived in the petitioners' testimonies or for the

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- 32 -
implausibility she found of their tale. And the record does not
compel a different result.
Another concern we note involves one of the ways the IJ
justified the adverse credibility finding which was in fact
completely belied by the record. The IJ wrote that M.S.C.'s
"ability to provide detail" about the way the forced-abortion
procedure felt "could just as easily have been from her knowledge
of the procedure that she admitted she had in March 2015 when she
had the ectopic pregnancy terminated." The IJ's accusation is,
however, directly contradicted by M.S.C.'s personal statement
appended to her initial application for relief from removal, signed
August 18, 2014 (thus predating her March 2015 procedure by several
months). This written account of the forced abortion experience
is consistent with the description and detail in her 2018 hearing
testimony.19 She therefore could not have gained hindsight for her
19 We note that the administrative record has a blank page
where the certified English translation of M.S.C.'s personal
statement should be, but we have every confidence that the
translation was in the record before the agency. First, the
certification of translation appears on the very next page in the
record followed by the original statement handwritten in Chinese.
Moreover, the petitioners' transmittal letter for their asylum
application makes explicit reference to a personal statement
attached thereto. We note that the updated administrative record
filed in the consolidated appeal indeed includes the page with the
English translation (while also missing parts of the asylum
application form which were included in the administrative record
filed in the initial and lead case). All this to say that, given
some pages of the petitioners' application are missing from each
of the administrative records provided to this court, we have every

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- 33 -
description of the experience from a medical procedure that had
yet to occur. And still, the IJ, as well as the BIA, missed,
overlooked, or ignored this earlier, detailed, consistent
narrative of her experience in China in 2013 even though the IJ
remarked at the outset of the individual merits hearing that "I
will say for the record, I've reviewed everything that's happened
in the previous proceedings and everything that is in the written
record before me, and I am fully familiar with both," and in her
written decision that she had "fully familiarized [her]self with
the record," which we take to mean that she read M.S.C.'s asylum
application, including the personal statement attached to it. The
record clearly suggests otherwise.20
Even taking our concerns into consideration, we cannot
say, after conducting our whole record review, that the IJ's
reason to believe the English translation of M.S.C.'s personal
statement was in fact part of the record before the IJ.
20 It is important to note the argument the petitioners are
not making. They do not contend that a single error tainted the
entire factfinding process, instead they assert that none of the
bases on which the agency stood to justify the adverse credibility
finding should hold up upon this court's review. Cf. Alam v.
Garland, 11 F.4th 1133, 1137 (9th Cir. 2021) (emphasizing "there
is no bright-line rule under which some number of inconsistencies
[between the record and the reasoning used to conclude a petitioner
was not credible] requires sustaining or rejecting the adverse
credibility determination."); Singh v. Garland, 6 F.4th 418, 427
(2d Cir. 2021) (an adverse credibility finding "cannot stand" when
a basis is disqualified and "the remaining non-disqualified bases
are legally insufficient to satisfy the substantial evidence
requirement.").

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- 34 -
credibility finding is not a reasonable and rational view of the
evidence, particularly given the sometimes nonresponsive and
sometimes inapposite answers the petitioners provided when the IJ
attempted to gain some clarity about her areas of concern. Thus,
in the end, we necessarily conclude there is "reasonable,
substantial and probative" evidence on the record, considered as
a whole, to support the agency's adverse credibility finding, see
Aguilar-De Guillen, 902 F.3d at 32 (quoting Singh, 750 F.3d at
86).
Reaching this conclusion does not complete our work. We
march forward to examine the petitioners' claims of error about
the agency according little weight to the corroborating evidence
they submitted.
Corroborating Evidence
The petitioners say the agency was wrong to devalue two
types of documentary evidence -- the medical certificates and the
letters from family members and friends -- and to conclude this
evidence did not independently establish their burden of proof.
See Camara v. Ashcroft, 378 F.3d 361, 369-71 (4th Cir. 2004)
(reinforcing that independent evidence -- even if circumstantial
-- can establish past persecution even when the agency makes an
adverse credibility finding against the petitioner). While the
petitioners do not develop a detailed argument about how this
evidence, independent of the adverse credibility determination,

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- 35 -
gets them over the burden-of-proof finish line, for the sake of
completeness we take up their arguments about why the evidence
they submitted in each category was entitled to greater weight.
Medical Certificates
Of the two medical certificates M.S.C. submitted to
corroborate the forced abortion procedure she relies on in her
asylum application, one, dated May 13, 2013, states simply,
"termination of pregnancy; conducted abortion; inserted with IUD"
and includes a certificate of translation. The other certificate,
dated June 15, 2013, includes, under a "symptoms" description:
"Reexamine the IUD inserted; infected with minor cervical erosion,
but would not affect female fertility" and it likewise includes a
certificate of translation.21 The record also includes a copy of
each original certificate, written in Chinese and showing two seals
stamped over the writing.22 The IJ declined to afford these
21 Pursuant to 8 C.F.R. § 1003.33,
[a]ny foreign language document offered by a party in a
proceeding shall be accompanied by an English language
translation and a certification signed by the translator
that must be printed legibly or typed. Such
certification must include a statement that the
translator is competent to translate the document, and
that the translation is true and accurate to the best of
the translator's abilities.
The medical certificates meet this requirement to a T.
22 In compliance with 8 C.F.R. § 1003.31(c), these originals
were provided to the IJ for inspection during the hearing when she
requested them.

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- 36 -
documents "substantial weight" because they "had not been
authenticated" pursuant to the parameters of 8 C.F.R. § 287.6
(requiring copies of official records to be attested by an
authorized officer or by an official publication), and they also
"contain[ed] little to no detail about the medical procedures
[M.S.C.] had undergone in China." The BIA, relying exclusively on
§ 287.6, concluded the IJ "appropriately afforded the certificates
little weight" because "they were not properly authenticated, as
is required by the regulations."
The petitioners argue here that the agency should not
have required authenticated medical certificates, particularly
given the difficulty in obtaining authenticated documents from a
government persecutor, when the medical procedures memorialized in
the documents are the source of their claimed persecution and
wherein the courts have recognized that § 287.6 is not the
exclusive manner of authenticating records submitted to the agency
in support of an application for relief. The government, for its
part, asserts that the agency "reasonably determined that these
documents deserved limited weight."
We do agree with the petitioners when they assert an
agency's exclusive reliance on § 287.6 for authentication
disregards this court's prior clarification that § 287.6 "offers
only a method-not the exclusive method-for authenticating a record
in an asylum case. Circuit courts, including this one, have

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- 37 -
[commented] that noncompliance with the punctilio of 8 C.F.R.
§ 287.6 is not an absolute bar to the admissibility of a foreign
document in an asylum hearing." Jiang v. Gonzales, 474 F.3d 25,
29 (1st Cir. 2007) (emphases added) (citations omitted); see also
Xiu Xia Zheng v. Holder, 502 F. App'x 13, 16 (1st Cir. 2013)
("[A]uthentication requires nothing more than proof that a
document or thing is what it purports to be . . . ." (quoting Yongo
v. INS, 355 F.3d 27, 30–31 (1st Cir. 2004))). That said, the
problem for petitioners is this. The agency did not exclude the
certificates as inadmissible. It simply declined to afford them
substantial weight, citing lack of authentication via § 287.6 as
well as the lack of substantive detail on the certificates
themselves. As we have previously noted, typically an agency's
decision about the evidentiary weight that a purportedly
corroborating document deserves is a valid exercise of its
discretion. Pan v. Gonzales, 489 F.3d 80, 83 n.1 (1st Cir. 2017)
(affirming IJ's decision to accord little weight to documents
submitted as corroborating evidence when IJ found evidence in
question (bail receipts) not "properly authenticated"); Hang Chen
v. Holder, 675 F.3d 100, 107 (1st Cir. 2012) ("The BIA has
discretion to deem a document's lack of authentication a telling
factor weighing against its evidentiary value."). And nothing
about the facts here causes us to deviate from that general rule.
All up, we have no reason to say the agency's decision to afford

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- 38 -
limited weight to the medical certificates the petitioners
submitted to corroborate their claim was not adequately supported
by the record.23
Letters of Support from Family & Friends
The petitioners also challenge the agency's decision to
afford little corroborative weight to the letters submitted by
their friends and family. They assert that these letters have
greater heft and, in fact, greatly assisted them in meeting their
burden of proof for their asylum claim. First, the petitioners
argue that the IJ's finding that the letters were vague and
inconsistent with their testimony is not explained in either the
IJ's or BIA's decisions and, when scrutinized, has no support in
the record. Second, the petitioners push back on the idea that
the letters were written by so-called interested parties because
23 We have acknowledged the difficulties petitioners may face
in obtaining notarized copies of the official documents
corroborating their claims of persecution by governments having
fundamental operating systems at odds with comparable U.S.
protocols including the Chinese government. See, e.g., Cabas v.
Barr, 928 F.3d 177, 184 (1st Cir. 2019) ("[A]sylum applicants
cannot always reasonably be expected to have an authenticated
document from an alleged persecutor." (quoting Gui Cun Liu v.
Ashcroft, 372 F.3d 529, 532 (3d Cir. 2004))); Gi Kuan Tsai v.
Holder, 505 F. App'x 4, 8 (1st Cir. 2013) (citing Xiu Xia Zheng v.
Holder, 502 F. App'x 13, 15–16 (1st Cir. 2013)) (acknowledging
"the difficulty a Chinese citizen may have" obtaining
authenticated records); Ren v. Ashcroft, 145 F. App'x 378, 382
(1st Cir. 2005) (acknowledging "it is not hard to imagine why
authenticated records might be hard to obtain" after referring to
unauthenticated hospital certificates produced to support the
petitioner's claimed forced abortion and IUD procedure).

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- 39 -
none of the authors stood to personally gain from the petitioners
securing relief from removal.
We will not linger long here but do want to point out
that while the IJ faulted the letters for being "extremely vague
on any details of what the [petitioners] told them, when the
abortion occurred, or the follow up care that they are aware of
[M.S.C.] receiving" as well as inconsistent with parts of M.S.C.'s
testimony, our careful review indicates there is actually no
inconsistent information provided by the petitioners' family and
friends in these letters when they are read alongside the
petitioners' testimonies from the merits hearing. Moreover,
despite the petitioners explicitly pointing out (in their brief to
the BIA) that the IJ's criticism of supposed inconsistencies in
one letter was misplaced because the basis of the criticism
confused the author of one of the letters as being written by
M.S.C.'s mother instead of L.Z.'s mother, the actual author of
that letter,24 the BIA accepted the IJ's conclusions about the low
evidentiary value of the letters, placing most of its emphasis on
24 The IJ faulted the letter purportedly from M.S.C.'s mother
as not indicating she had been at the gynecological follow up
appointments with M.S.C. when M.S.C.'s sister's letter had
referenced that she -- M.S.C.'s sister -- and M.S.C.'s mother had
attended several gynecological examinations with M.S.C. after the
abortion. The record shows the sole letter submitted from a mother
was in fact from L.Z.'s mother who neither M.S.C. nor L.Z. ever
claimed had attended any medical appointments.

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- 40 -
the IJ's point about "the letters [being] authored by interested
parties."
While our review may lead us to disagree with the
agency's finding that the letters are inconsistent with the
petitioners' testimonies, precedent nonetheless constrains us to
conclude that this disagreement does not amount to reversible
error. In its own unchallenged jurisprudence the BIA has
previously found (though, we note, without any explanation) that
letters from family members may be accorded less weight because
they "are interested witnesses who were not subject to cross-
examination." Matter of H-L-H & Z-Y-Z-, 25 I. & N. Dec. 209, 215
(B.I.A. 2010) (abrogated on other grounds by Hui Lin Huang v.
Holder, 677 F.3d 130 (2d Cir. 2012)). And our case law is clear
-- unless the record compels a different result, the weight
accorded to admitted evidence is squarely within the agency's
purview. See Hang Chen, 675 F.3d at 107.
Denying Relief from Removal
While the petitioners focus most of their arguments
before us on the adverse credibility determination and weight
accorded to the medical certificates and letters, they also briefly
argue M.S.C. "has a well-founded fear of persecution independent
of the past mistreatment she suffered" because, they argue, they
have met their burden to show a reasonable fear of harm if they
are removed to China based on China's continued enforcement of the

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Family Planning Policy. The basis for this argument, however,
continues to rely primarily on their asserted punishment for their
alleged violation of the one child policy in effect before they
left China. Because we have upheld the agency's conclusions that
the petitioners' testimonies were not credible and the
corroborative evidence was not entitled to much weight, the
petitioners have no evidence left on the record from which we could
conclude they established a well-founded fear of future
persecution.25 See Segran v. Mukasey, 511 F.3d 1, 5, 7 (1st Cir.
2007) (A negative credibility finding can, "by itself," support "a
conclusion that [the petitioner] has not proved a well-founded
fear of persecution."). To the extent the petitioners rely on the
country conditions report they submitted with the application for
relief from removal, this report does not add any further support
to bolster the claims because, as the IJ stated, the report showed
a substantial change in China's Family Planning Policy since the
petitioners arrived in the United States. Beginning in January
2016, every couple could choose to have two children and, under
certain circumstances, be granted permission to have a third child.
25 So too with M.S.C.'s contention that she qualifies for a
humanitarian grant of asylum. 8 C.F.R. § 208.13(b)(1)(iii)(A)
provides that the agency has the discretion to grant asylum to an
applicant who (if not disqualified for other reasons) "has
demonstrated compelling reasons for being unwilling or unable to
return to the country arising out of the severity of the past
persecution." Because M.S.C. has not met her burden to prove past
persecution, she is not eligible for this relief.

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See 8 C.F.R. § 208.13(b)(1)(i)(A) (an IJ may deny an asylum
application if "[t]here has been a fundamental change in
circumstances such that the applicant no longer has a well-founded
fear of persecution in the applicant's country of nationality").
After our thorough review of the whole record and
faithful application of the applicable standard of review, there
is substantial evidence to support the agency's decisions in this
case and we are not compelled to reach a contrary decision about
the merits of the petitioners' application for asylum. See
Aguilar-De Guillen, 902 F.3d at 32-33.26
CONCLUSION
For the reasons explained above, the petitioners'
petitions for review are denied.
26 Because the petitioners have not met the standard for
asylum, they "necessarily cannot meet the higher standard for
withholding of removal." Jinan Chen v. Lynch, 814 F.3d 40, 46-47
(1st Cir. 2016) (quoting Attia v. Gonzales, 477 F.3d 21, 24 (1st
Cir. 2007)).
As for the CAT claim, while the adverse credibility
determination does not necessarily doom this claim, Wen Feng Liu
v. Holder, 714 F.3d 56, 61 n.1 (1st Cir. 2013) ("[A]n adverse
credibility finding that is fatal to an asylum application is not
automatically fatal to a CAT claim."), the petitioners' arguments
for CAT protection rely on the same evidence as that deemed not
credible. As a result, the petitioners have not met their high
burden to show it is "more likely than not" M.S.C. would be
"tortured if removed to" China. Aguilar-De Guillen, 902 F.3d at
36.

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