11-4457
Xu v. Holder
BIA
Vomacka, IJ
A089 222 798
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 Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 6th day of August, two thousand twelve.
5
6 PRESENT:
7 JOSEPH M. MCLAUGHLIN,
8 DEBRA ANN LIVINGSTON,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11
12
13 XIANG HUA XU,
14
15 Petitioner,
16
17 v. 11-4457
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22
23
24 FOR PETITIONER: Thomas V. Massucci, New York, New
25 York.
26
27 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
28 Attorney General; Richard M. Evans,
29 Assistant Director, Kevin J. Conway,
1 Trial Attorney, Office of
2 Immigration Litigation, Civil
3 Division, United States Department
4 of Justice, Washington, D.C.
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DENIED.
10 Xiang Hua Xu, a native and citizen of the People’s
11 Republic of China, seeks review of an October 5, 2011, order
12 of the BIA, affirming the November 4, 2009, decision of an
13 Immigration Judge (“IJ”) which denied her application for
14 asylum, withholding of removal, and relief under the
15 Convention Against Torture (“CAT”). In re Xiang Hua Xu, No.
16 A089 222 798 (B.I.A. Oct. 5, 2011), aff’g No. A089 222 798
17 (Immig. Ct. N.Y. City Nov. 4, 2009). We assume the parties’
18 familiarity with the underlying facts and procedural history
19 in this case.
20 We have reviewed both the BIA’s and IJ’s opinions in
21 this case. Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d
22 Cir. 2005). The applicable standards of review are well
23 established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
24 Holder, 562 F.3d 510, 513 (2d Cir. 2009).
25
2
1 For asylum applications governed by the REAL ID Act,
2 such as this one, the agency may, considering the totality
3 of the circumstances, base a credibility finding on an
4 asylum applicant’s demeanor, the plausibility of her
5 account, and inconsistencies in her statements, without
6 regard to whether they go “to the heart of the applicant’s
7 claim.” 8 U.S.C. § 1158(b)(1)(B)(iii).
8 I. Past Persecution - Adverse Credibility Determination
9 Substantial evidence supports the agency’s conclusion
10 that Xu did not testify credibly regarding her claim that
11 she suffered past persecution in China on account of her
12 Christian faith and participation in house church
13 activities. In finding Xu not credible, the agency
14 reasonably relied on Xu’s failure to provide a consistent
15 account of the year in which she was arrested and detained
16 in China. See Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d
17 Cir. 2008) (per curiam). The IJ was not required to
18 specifically request an explanation for these
19 inconsistencies, as they were not minor. See Ming Shi Xue
20 v. BIA, 439 F.3d 111, 122 n.13 (2d Cir. 2006). Moreover,
21 the agency reasonably relied on discrepancies between Xu’s
22 testimony and asylum interview with respect to whether she
3
1 had applied for a U.S. visa prior to her arrival in March
2 2008, and between Xu’s testimony and medical certificate
3 with respect to the time of day that Xu had arrived at the
4 hospital seeking treatment for injuries she allegedly
5 sustained while in detention. See Xiu Xia Lin, 534 F.3d at
6 167. A reasonable factfinder would not have been compelled
7 to credit Xu’s explanation for these inconsistencies.
8 See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).
9 Additionally, the agency reasonably determined that
10 Xu’s credibility was undermined by her admission that she
11 had lied to U.S. consulate officials in Honduras about her
12 finances in order to procure a U.S. entry visa. When
13 considered under the totality of the circumstances, the
14 misrepresentation casts further doubt on Xu’s veracity. See
15 Xiu Xia Lin, 534 F.3d at 167.
16 The agency also did not err in finding that the
17 evidence Xu submitted was insufficient to rehabilitate her
18 otherwise incredible testimony. See Biao Yang v. Gonzales,
19 496 F.3d 268, 273 (2d Cir. 2007) (per curiam).
20 Specifically, the agency was not required to credit letters
21 from Xu’s husband, parents, and friend in China. See Xiao
22 Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.
4
1 2006) (finding that the weight afforded to the applicant’s
2 evidence in immigration proceedings lies largely within the
3 discretion of the agency). Furthermore, the agency’s
4 determination that Xu’s remaining evidence was of little
5 probative value is entitled to deference, given that the
6 evidence was unauthenticated and Xu’s credibility already
7 had been called into question. See Qin Wen Zheng v.
8 Gonzales, 500 F.3d 143, 149 (2d Cir.2007); see also Xiao Ji
9 Chen, 471 F.3d at 342.
10 II. Well-Founded Fear of Future Persecution - Burden of
11 Proof
12
13 Because the agency reasonably concluded that Xu did not
14 establish past persecution, she is not entitled to a
15 presumption of future persecution. See 8 C.F.R.
16 § 1208.13(b)(1). The IJ also reasonably found that Xu
17 failed to demonstrate a well-founded fear of future
18 persecution based on a pattern or practice of persecution
19 of members of house churches in China. See
20 8 C.F.R. § 1208.13(b)(2)(iii). Indeed, the IJ– referencing
21 the 2008 U.S. Department of State International Religious
22 Freedom Report in the record– reasonably found that although
23 the report indicated that the Chinese government has
24 targeted Christian house church groups, it also indicated
5
1 that the degree of interference and harassment often varied
2 depending on the house church group’s size and the region in
3 which it was located, and, therefore, did not establish that
4 the government’s repression of house church groups is so
5 coordinated and widespread as to negatively affect the
6 millions of Christians who engage in unsanctioned religious
7 worship. See Mufied v. Mukasey, 508 F.3d 88, 92 (2d Cir.
8 2007); see also Siewe v. Gonzales, 480 F.3d 160, 167 (2d
9 Cir. 2007) (“[W]here there are two permissible views of the
10 evidence, the fact finder’s choice between them cannot be
11 clearly erroneous.” (internal quotation marks omitted)).
12 Moreover, the IJ reasonably found that Xu failed to
13 establish a pattern or practice of persecution of Christians
14 similarly situated to her, as the background evidence
15 predominantly reflected ongoing harassment of church
16 leaders, pastoral officials, and bishops, and not laypersons
17 such as Xu. See 8 C.F.R. § 1208.13(b)(2)(iii). Finally, in
18 the absence of any record evidence showing that the Chinese
19 government was aware or likely to become aware that Xu
20 practiced Christianity in the United States, Xu did not meet
21 her burden of showing an objectively reasonable fear of
22 future persecution. See Hongsheng Leng v. Mukasey, 528 F.3d
23 135, 143 (2d Cir. 2008) (per curiam).
6
1 Xu was similarly unable to meet the higher burdens for
2 withholding of removal and CAT relief, as those claims were
3 based on the same facts and evidence. See Paul v. Gonzales,
4 444 F.3d 148, 156 (2d Cir. 2006).
5 For the foregoing reasons, the petition for review is
6 DENIED. As we have completed our review, any stay of
7 removal that the Court previously granted in this petition
8 is VACATED, and any pending motion for a stay of removal in
9 this petition is DISMISSED as moot. Any pending request for
10 oral argument in this petition is DENIED in accordance with
11 Federal Rule of Appellate Procedure 34(a)(2), and Second
12 Circuit Local Rule 34.1(b).
13 FOR THE COURT:
14 Catherine O’Hagan Wolfe, Clerk
15
7