12-1196
Xue v. Holder
BIA
Laforest, IJ
A087 446 589
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 16th day of September, two thousand thirteen.
5
6 PRESENT:
7 ROBERT D. SACK,
8 PETER W. HALL,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 AIQIN XUE,
14 Petitioner,
15
16 v. 12-1196
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Zhong Yue Zhang, New York, N.Y.
24
25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
26 Attorney General; Richard M. Evans,
27 Assistant Director; Jeffrey J.
28 Bernstein, Trial Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Aiqin Xue, a native and citizen of the People’s
6 Republic of China, seeks review of a March 16, 2012,
7 decision of the BIA (1) affirming the July 14, 2010,
8 decision of Immigration Judge (“IJ”) Brigitte Laforest,
9 which denied her application for asylum and granted
10 withholding of removal; and (2) remanding the proceedings to
11 the IJ. In re Aiqin Xue, No. A087 446 589 (B.I.A. Mar. 16,
12 2012), aff’g No. A087 446 589 (Immig. Ct. N.Y. City July 14,
13 2010). We assume the parties’ familiarity with the
14 underlying facts and procedural history in this case.
15 Under the circumstances of this case, we have reviewed
16 the decision of the IJ as supplemented by the BIA. See Yan
17 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). Xue’s
18 premature petition for review has now ripened into a valid
19 petition for review. See Herrera-Molina v. Holder, 597 F.3d
20 128, 132 (2d Cir. 2010). We review the discretionary denial
21 of asylum for abuse of discretion. 8 U.S.C.
22 § 1252(b)(4)(D); Wu Zheng Huang v. INS, 436 F.3d 89, 96, 101
23 (2d Cir. 2006).
2
1 The agency’s decision to deny asylum as a matter of
2 discretion to someone who falls within the definition of
3 refugee requires an analysis of the “totality of the
4 circumstances,” in which adverse factors are balanced
5 against favorable ones. Wu Zheng Huang, 436 F.3d at 98. In
6 this case, the agency did not abuse its discretion. First,
7 the IJ’s adverse credibility determination as it relates to
8 Xue’s visa application and her testimony regarding that
9 application, is supported by substantial evidence. See Xiu
10 Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (per
11 curiam) (providing that adverse credibility determinations
12 are reviewed for substantial evidence). The IJ reasonably
13 based her adverse credibility determination on
14 inconsistencies between Xue’s testimony and her visa
15 applicant report. In her testimony, she stated that she did
16 not the tell the U.S. government that the purpose of her
17 visit was to see her daughter, who was studying in the U.S.
18 The visa applicant report, in contrast, states that Xue
19 indicated she wanted to see her daughter, who was studying
20 in the U.S., and that Xue presented a letter from her
21 daughter discussing her studies. See 8 U.S.C.
22 § 1158(b)(1)(B)(iii) (identifying inconsistencies as a valid
3
1 basis for an adverse credibility determination). Moreover,
2 the IJ reasonably declined to credit Xue’s explanation for
3 the inconsistency: that a friend prepared her visa
4 application for her, she was not aware of its contents, and
5 she signed it without reading it. See Majidi v. Gonzales,
6 430 F.3d 77, 80-81 (2d Cir. 2005). Accordingly, given the
7 inconsistency, the totality of the circumstances supports
8 the agency’s conclusions that Xue was not credible in her
9 testimony regarding her visa application and that she
10 submitted a fraudulent visa application. See 8 U.S.C.
11 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167.
12 The IJ then concluded that Xue did not merit a positive
13 exercise of discretion given her fraudulent visa application
14 and her incredible testimony with regard to that
15 application. Although the IJ did not weigh Xue’s positive
16 equities against these negative factors, upon de novo
17 review, the BIA, after affirming the IJ’s finding that Xue
18 engaged in “fraudulent conduct,” did consider both positive
19 and negative equities, and affirmed the discretionary denial
20 of asylum based on a totality of the circumstances.
21 Because, as set forth below, the BIA sufficiently weighed
22 the equities and provided a reasoned explanation, we find no
4
1 abuse of discretion. See Wu Zheng Huang, 436 F.3d at 99; Ke
2 Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir.
3 2001).
4 The BIA considered the positive factors — that absent a
5 grant of asylum, there was no reasonable way for Xue to
6 reunite with her family; Xue has no criminal or terrorist
7 history; and there was a danger she would be persecuted in
8 China. See Kong Min Jian v. INS, 28 F.3d 256, 259 (2d Cir.
9 1994); In re Kasinga, 21 I. & N. Dec. 357, 367 (BIA 1996);
10 In re H-, 21 I. & N. Dec. 337, 348 (BIA 1996). And the BIA
11 considered Xue’s fraudulent conduct in connection with her
12 visa application, which occurred when she was not fleeing
13 persecution, and her lack of credibility when testifying as
14 to the visa application. See Kong Min Jian, 28 F.3d at 259;
15 In re Chen, 20 I. & N. Dec. 16, 19 (BIA 1989). Xue’s
16 inability to reunite with her family in the United States
17 absent a grant of asylum is a serious consideration weighing
18 in favor of a positive exercise of discretion. The BIA did
19 not abuse its discretion, however, when it weighed the
20 positive factors against the negative factors and concluded
21 that a totality of the circumstances did not merit a
22 positive exercise of discretion, particularly given that due
23 to the grant of withholding of removal, Xue will not be
5
1 returned to China, and Xue did not suffer past persecution
2 in China. See Wu Zheng Huang, 436 F.3d at 99; Ke Zhen Zhao,
3 265 F.3d at 93.
4 For the foregoing reasons, the petition for review is
5 DENIED.
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe, Clerk
6