11-4122 BIA
Wang v. Holder Mulligan, IJ
A088 372 122
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 27th day of August, two thousand twelve.
5
6 PRESENT:
7 JON O. NEWMAN,
8 REENA RAGGI,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 XIAOFANG WANG,
14 Petitioner,
15
16 v. 11-4122
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Gary Yerman, New York, New York.
24
25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
26 Attorney General; Linda S. Wernery,
27 Assistant Director, Walter Bocchini;
28 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 Xiaofang Wang, a native and citizen of the People’s
6 Republic of China, seeks review of a September 15, 2011,
7 decision of the BIA affirming the September 26, 2008,
8 decision of an Immigration Judge (“IJ”), which denied his
9 application for asylum, withholding of removal, and relief
10 under the Convention Against Torture (“CAT”). In re
11 Xiaofang Wang, No. A088 372 122 (B.I.A. Sept. 15, 2011),
12 aff’g No. A088 372 122 (Immig. Ct. N.Y. City, Sept. 26,
13 2008). We assume the parties’ familiarity with the
14 underlying facts and procedural history in this case.
15 We have reviewed the IJ’s decision as supplemented by
16 the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d
17 Cir. 2005). The applicable standards of review are well
18 established. See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia
19 Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).
20 I. Credibility
21 For asylum applications, like Wang’s, governed by the
22 REAL ID Act, the agency may, “[c]onsidering the totality of
23 the circumstances, . . . base a credibility determination on
2
1 the demeanor, candor or responsiveness of the applicant, . .
2 . [and] the consistency between the applicant’s or witness’s
3 written and oral statements, . . . without regard to whether
4 an inconsistency . . . goes to the heart of the applicant’s
5 claim.” See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534
6 F.3d at 167. We “defer to an IJ’s credibility determination
7 unless, from the totality of the circumstances, it is plain
8 that no reasonable fact-finder could make such an adverse
9 credibility ruling.” Xiu Xia Lin, 534 F.3d at 167.
10 In finding that Wang’s demeanor reflected negatively on
11 her credibility, the agency concluded that her demeanor was
12 designed to “curry favor” with the court and that she
13 displayed emotions and various facial expressions that were
14 “contrived.” A reviewing court grants “particular
15 deference” in applying the substantial evidence standard to
16 credibility findings based on demeanor. Dong Gao v. BIA,
17 482 F.3d 122, 126-27 (2d Cir. 2007). Here, the IJ’s
18 credibility determination is based on physical observations
19 to which “particular deference” is due. Id.
20 The adverse credibility determination is further
21 supported by inconsistencies in the record concerning the
22 number of times Wang was detained. See Xiu Xia Lin, 534
3
1 F.3d at 167 (holding that “an IJ may rely on any
2 inconsistency or omission in making an adverse credibility
3 determination . . .”). In her asylum application Wang
4 listed only a single incident in which she and her
5 colleagues were taken to a police station and held for
6 questioning. However, before the IJ, Wang stated that she
7 had been held by the police five or six times. The IJ was
8 not required to credit Wang’s explanation for the omission,
9 that she listed only the major incident in her application
10 and intended to supplement the application with testimony,
11 particularly given the centrality of any arrest to her claim
12 and her statement in her application that during the
13 relevant period she was harassed by the authorities. See
14 Xiu Xia Lin, 534 F.3d at 167; see Majidi v. Gonzales, 430
15 F.3d 77, 80-81 (2d Cir. 2005) (the agency need not credit an
16 applicant’s explanations for inconsistent testimony unless
17 those explanations would compel a reasonable fact-finder to
18 do so).
19 Having questioned Wang’s credibility, the agency
20 reasonably relied on her failure to provide sufficient
21 evidence to corroborate her claim. See Biao Yang v.
22 Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“[T]he absence
4
1 of corroboration in general makes an applicant unable to
2 rehabilitate testimony that has already been called into
3 question.”). The agency was not required to credit the
4 affidavits Wang submitted, as the affidavits did not confirm
5 any specific arrests or other incidents of persecution. See
6 Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d
7 Cir. 2006) (the weight to be afforded to an applicant’s
8 evidence in immigration proceedings lies largely within the
9 discretion of the agency). Accordingly, given the demeanor
10 finding, inconsistency, and lack of corroboration, the
11 agency’s adverse credibility determination is supported by
12 substantial evidence. See 8 U.S.C. § 1158(b)(1)(B)(iii);
13 Xiu Xia Lin, 534 F.3d at 165-66.
14 II. Future Persecution Based on U.S. Activities
15 Nor did the BIA err in determining that Wang’s
16 activities in the U.S. did not establish an objective
17 likelihood of future persecution. To establish asylum
18 eligibility based on future persecution, an applicant must
19 show that he or she subjectively fears persecution and that
20 this fear is objectively reasonable. Ramsameachire v.
21 Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004). A fear is not
22 objectively reasonable if it lacks “solid support” in the
23 record and is merely “speculative at best.” Jian Xing Huang
5
1 v. INS, 421 F.3d 125, 129 (2d Cir. 2005). Thus, an
2 applicant claiming a prospective fear of persecution must
3 make some showing that the government is aware or is likely
4 to become aware of his or her activities. See Hongsheng
5 Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir. 2008). Although
6 the evidence Wang submitted – affidavits confirming her
7 participation in U.S.-based demonstrations and photographs
8 of her participation in these demonstrations – confirms her
9 activities, it fails to show that the Chinese government is
10 aware or likely to become aware of such activities. Id.
11 For the foregoing reasons, the petition for review is
12 DENIED. As we have completed our review, any stay of
13 removal that the Court previously granted in this petition
14 is VACATED, and any pending motion for a stay of removal in
15 this petition is DISMISSED as moot. Any pending request for
16 oral argument in this petition is DENIED in accordance with
17 Federal Rule of Appellate Procedure 34(a)(2), and Second
18 Circuit Local Rule 34.1(b).
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk
21
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