Yan Zhen Zhang; Hong Biao Chen v. Ashcroft, 239 F.3d 542, 547 3d Cir. 2001 . “[W]hen the BIA adopts the findings of the IJ

1
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-1508
___________
YAN ZHEN ZHANG;
HONG BIAO CHEN,
Petitioners
vs.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
___________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency Nos. A99-427-384 and A99-934-701
Immigration Judge: Margaret R. Reichenberg
____________________________________
Submitted Under Third Circuit LAR 34.1(a)
January 5, 2010
Before: Chief Judge SCIRICA, SMITH and WEIS, Circuit Judges
(Opinion filed: January 7, 2010)
_________
OPINION
_________
PER CURIAM.
Petitioners Yan Zhen Zhang and Hong Biao Chen (collectively,
“Petitioners”), a married couple from China, seek review of a final order of removal.
Zhang, as the lead petitioner, claims that she suffered past persecution at the hands of

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Chen applied as a derivative rider. His eligibility for asylum is therefore predicated1
on Zhang’s claims.
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government officials through their enforcement of China’s coercive family planning
policy. She fears future persecution if removed to China based on her giving birth to a
second child while in the United States. Because the Immigration Judge’s (“IJ”) adverse
credibility determination is supported by substantial evidence, and because Zhang has
failed to brief any issue other than her purported eligibility for asylum, we will deny the
petition for review.
I.
Petitioners arrived in the United States sometime in 2005 at an unknown
point of entry. In October of that year, Zhang filed an application for asylum,
withholding of removal, and relief under the Convention Against Torture (“CAT”). One1
month later, Petitioners were served with a Notice to Appear. After an evidentiary
hearing, the IJ concluded that Zhang had failed to establish eligibility for any of the
aforementioned forms of relief, as her testimony was not credible and there were no
allegations of past or prospective torture.
The BIA dismissed Zhang’s appeal. It concluded that the IJ’s adverse
credibility determination was not clearly erroneous, and that the IJ properly considered
the following inconsistencies and omissions to support that determination: (1) Zhang’s
asylum application did not mention the alleged IUD removal and reinsertion in 1997; (2)

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the letter from Zhang’s father failed to mention that she was hiding in his home in May
1994, as alleged; (3) the letter from Chen’s mother failed to mention visits from family
planning officials in May 1994; and (4) the dates put forth by Zhang and Chen about
when Zhang had her IUD removed differed by more than a year’s time. The BIA
alternatively determined that with respect to Zhang’s “claim of future persecution based
on the birth of her son in the United States . . ., the record does not support [her] apparent
claim that parents of foreign-born children would face sanctions amounting to persecution
upon their return to China.” The BIA also determined that Zhang had failed to “raise any
arguments on appeal challenging the [IJ’s] denial of protection under the Convention
Against Torture.” Zhang appealed.
II.
We have jurisdiction to review a final order of removal under 8 U.S.C. §
1252(a)(1). See Abdulai v. Ashcroft, 239 F.3d 542, 547 (3d Cir. 2001). “[W]hen the
BIA adopts the findings of the IJ and discusses some of the bases for the IJ’s decision, we
have authority to review the decisions of both the IJ and BIA.” Chen v. Ashcroft, 376
F.3d 215, 222 (3d Cir. 2004). We review adverse credibility determinations for
substantial evidence. See Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002). Because
Zhang filed her asylum application after the enactment of the REAL ID Act, the
inconsistencies, inaccuracies, or falsehoods upon which the adverse credibility finding is
based need not go the heart of her claim. See Lin v. Att’y Gen., 543 F.3d 114, 119 n.5

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(3d Cir. 2008). Rather, the REAL ID Act permits credibility determinations to be based
on observations of Zhang’s demeanor, the plausibility of her story, and on the consistency
of her statements. See 8 U.S.C. § 1158(b)(1)(B)(iii); Gabuniya v. Att’y Gen., 463 F. 3d
316, 322 n.7 (3d Cir. 2006).
III.
We conclude that substantial evidence supports the IJ’s adverse credibility
determination. Specifically, the inconsistencies with regard to Zhang’s asylum
application, the letter from Zhang’s father, the letter from Chen’s mother, and Zhang’s
and Chen’s testimony, are supported by the record, and were even conceded by Zhang on
appeal to the BIA. (AR 18-19.) Under the REAL ID Act, these inconsistencies justify the
adverse credibility determination. Thus, Petitioners are ineligible for asylum and
withholding of removal.
Zhang argues in her brief that “the omissions the IJ found did not go to the
heart of petitioner’s claim,” and also that “it is unfair to require the petitioner and her
witnesses to include every single detail in their written statements.” (Pet. Br. at 14.) Her
first point highlights her misunderstanding of the law. As described above, after the
passage of the REAL ID Act, an IJ may base her adverse credibility determination on
inconsistencies and omissions that do not concern the heart of an asylum-seeker’s claim.
See Lin, 543 F.3d at 119 n.5. Zhang’s second point is disingenuous. The IJ did not
require Zhang and her witnesses to furnish “every single detail” related to her claim; the

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IJ merely sought specific information about the most salient events in Zhang’s testimony
that supported her claim (i.e., the forced abortions, the IUD insertions, and the visits from
family planning officials). The IJ’s inquiry was not only reasonable but also permissible.
See 8 U.S.C. § 1158(b)(1)(B)(iii) (IJ considers “the totality of the circumstances, and all
relevant factors” in making an adverse credibility determination). As a result, we are
unable to say that “no reasonable factfinder could conclude as [she] did” in finding that
Zhang was not credible. Kayembe v. Ashcroft, 334 F.3d 231, 234 (3d Cir. 2003).
On appeal to the BIA, Zhang did not challenge the IJ’s determination that
she was ineligible for relief under the CAT. Nor does she do so here. As we have stated
many times, an appellant’s failure to raise an issue in her opening brief effectively waives
our consideration of that issue. See Chen v. Ashcroft, 381 F.3d 221, 235 (3d Cir. 2004).
Accordingly, we will deny the petition for review.

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