Case: 12-60607 Document: 00512255528 Page: 1 Date Filed: 05/29/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 29, 2013
No. 12-60607
Summary Calendar Lyle W. Cayce
Clerk
XIAOJING WU,
Petitioner
v.
ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A088 792 610
Before BARKSDALE, CLEMENT, and GRAVES, Circuit Judges.
PER CURIAM:*
Xiaojing Wu, a native and citizen of the People’s Republic of China,
petitions for review of the Board of Immigration Appeals’ (BIA) dismissing her
appeal from the immigration judge’s (IJ) order denying her application for
asylum, withholding of removal, and relief under the Convention Against
Torture (CAT). She contends: the IJ’s and BIA’s adverse credibility
determinations are invalid; the IJ violated her due-process rights by failing to
act as a neutral arbiter, given his expressions of impatience and hostility; and,
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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No. 12-60607
she has established a well-founded fear of future persecution, if she is returned
to China, on the basis of her sincerely held Roman Catholic faith.
An IJ’s credibility determination is reviewed under a highly deferential
standard, and must be upheld “unless, from the totality of the circumstances, it
is plain that no reasonable fact-finder could make such an adverse credibility
ruling”. Wang v. Holder, 569 F.3d 531, 538 (5th Cir. 2009) (citation and
quotation marks omitted). The IJ “may rely on any inconsistency or omission in
making an adverse credibility determination as long as the totality of the
circumstances establishes that an asylum applicant is not credible”. Id. (citation
and internal quotation marks omitted) (emphasis in original).
Wu asserts that the IJ improperly considered discrepancies based on the
information obtained at the time of her illegal-entry detention by Border Patrol
Agents during her original I-213 sworn interview, despite her subsequent
testimony indicating that the interview and supporting documentation were of
questionable validity. The IJ’s adverse credibility determination is supported
by, inter alia, inconsistencies among Wu’s asylum application and supporting
statement, the purportedly corroborating letter from Wu’s mother, and Wu’s
testimony at the merits hearings. See 8 U.S.C. § 1158(b)(1)(B)(iii) (asylum
applicant’s credibility may be determined by, inter alia, consistency between
applicant’s written and oral statements).
The crux of Wu’s claims was that she had a well-founded fear of future
persecution or torture based on her religious practices and intended
participation in future Catholic services. Along that line, she provided
inconsistent statements regarding the number of beatings she had suffered and
her church attendance following an October 2007 confrontation with police; and,
her mother’s letter reflected that her mother was present during the October
2007 altercation, but Wu testified she was home alone at the time. Wu’s
explanations for the inconsistencies do not compel the conclusion that no
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No. 12-60607
reasonable trier of fact could have found her not credible. See Wang, 569 F.3d
at 538.
Wu contends the IJ failed to act as a neutral arbiter, based on numerous
examples of claimed hostile, impatient, and intimidating comments during seven
evidentiary hearings. Because she did not raise the majority of these claims
before the BIA, she failed to exhaust her administrative remedies as to them;
and, as a result, we lack jurisdiction to review them. Omari v. Holder, 562 F.3d
314, 319 (5th Cir. 2009). To the extent Wu preserved, in the BIA, a challenge to
the IJ’s comments, they do not reflect a level of antagonism that would make fair
judgment impossible. See Wang, 569 F.3d at 540-41, citing Liteky v. United
States, 510 U.S. 540, 555 (1994) (“judicial remarks during the course of a
[proceeding] that are critical or disapproving of, or even hostile to, counsel, the
parties, or their cases, ordinarily do not support a bias or impartiality
challenge”). Accordingly, Wu fails to establish a due-process violation.
In the light of the adverse credibility ruling and Wu’s failure to establish
bias, the IJ and BIA had bases to deny Wu’s requests for asylum, withholding
of removal, or CAT relief. Cf. Chun v. INS, 40 F.3d 76, 79 (5th Cir. 1994)
(“Without credible evidence, the BIA had no basis upon which to grant asylum
or withhold deportation.”).
DENIED.
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