17-143 Xia v. Sessions BIA Hom, IJ A200 184 285
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 TO 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 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 8th day of August, two thousand eighteen. 5 6 PRESENT: 7 DENNIS JACOBS, 8 DENNY CHIN, 9 CHRISTOPHER F. DRONEY, 10 Circuit Judges. 11 _____________________________________ 12 13 JINNA XIA, 14 15 Petitioner, 16 17 v. 17-143 18 NAC 19 20 JEFFERSON B. SESSIONS III, 21 UNITED STATES ATTORNEY GENERAL, 22 23 Respondent. 24 _____________________________________ 25 26 FOR PETITIONER: Raymond Lo, Jersey City, NJ. 27 28 1 FOR RESPONDENT: Chad A. Readler, Acting Assistant 2 Attorney General; Anthony P. 3 Nicastro, Assistant Director; D. 4 Nicholas Harling, Trial Attorney, 5 Office of Immigration Litigation, 6 United States Department of 7 Justice, Washington, DC. 8 9 UPON DUE CONSIDERATION of this petition for review of a
10 Board of Immigration Appeals (“BIA”) decision, it is hereby
11 ORDERED, ADJUDGED, AND DECREED that the petition for review
12 is DENIED.
13 Petitioner Jinna Xia, a native and citizen of the
14 People’s Republic of China, seeks review of a December 20,
15 2016, decision of the BIA affirming a November 5, 2015,
16 decision of an Immigration Judge (“IJ”) denying Xia’s
17 application for asylum, withholding of removal, and relief
18 under the Convention Against Torture (“CAT”). In re Jinna
19 Xia, No. A200 184 285 (B.I.A. Dec. 20, 2016), aff’g No. A200
20 184 285 (Immig. Ct. N.Y. City Nov. 5, 2015). We assume the
21 parties’ familiarity with the underlying facts and procedural
22 history in this case.
23 Under the circumstances of this case, we review the IJ’s
24 decision as modified by the BIA. See Xue Hong Yang v. U.S.
25 Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). The
26 applicable standards of review are well established. See
2 1 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d
2 162, 165-66 (2d Cir. 2008). For the reasons that follow, we
3 conclude that the agency did not err in finding that Xia
4 failed to credibly establish past persecution based on her
5 alleged arrest and detention in China for attending an
6 underground church, or establish an independent well-founded
7 fear of future persecution based on her practice of
8 Christianity in the United States.
9 I. Past Persecution
10 The governing REAL ID Act credibility standard provides
11 that the agency must “[c]onsider[] the totality of the
12 circumstances,” and may base a credibility finding on an
13 applicant’s “demeanor, candor, or responsiveness,” the
14 plausibility of her account, and inconsistencies or omissions
15 in her or her witness’s statements, “without regard to
16 whether” they go “to the heart of the applicant’s claim.” 8
17 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-
18 64, 166-67. “We defer . . . to an IJ’s credibility
19 determination unless . . . it is plain that no reasonable
20 fact-finder could make such an adverse credibility ruling.”
21 Xiu Xia Lin, 534 F.3d at 167.
3 1 Initially, as the Government observes, Xia has waived
2 review of the agency’s findings that her testimony and medical
3 record were inconsistent concerning her injuries and that her
4 corroborating evidence was insufficient to rehabilitate her
5 credibility by failing to challenge them in her brief. See
6 Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998)
7 (“Issues not sufficiently argued in the briefs are considered
8 waived and normally will not be addressed on appeal.”). These
9 findings therefore stand as appropriate bases for the
10 credibility determination. See Shunfu Li v. Mukasey, 529
11 F.3d 141, 146-47 (2d Cir. 2008) (discussing waiver of
12 credibility findings); Biao Yang v. Gonzales, 496 F.3d 268,
13 273 (2d Cir. 2007) (“An applicant’s failure to
14 corroborate . . . may bear on credibility, because the
15 absence of corroboration in general makes an applicant unable
16 to rehabilitate testimony that has already been called into
17 question.”).
18 In addition, the agency reasonably found, based on the
19 totality of the circumstances, that Xia’s testimony was not
20 credible. As the agency concluded, Xia was not responsive to
21 certain questions, she provided inconsistent answers to
22 certain questions, and she did not provide sufficient
4 1 corroborating evidence. See Majidi v. Gonzales, 430 F.3d 77,
2 80 (2d Cir. 2005) (“A petitioner must do more than offer a
3 plausible explanation for h[er] inconsistent statements to
4 secure relief; [s]he must demonstrate that a reasonable fact-
5 finder would be compelled to credit h[er] testimony.”
6 (internal quotation marks omitted)); Siewe v. Gonzales, 480
7 F.3d 160, 167-68 (2d Cir. 2007) (“Where there are two
8 permissible views of the evidence, the factfinder’s choice
9 between them cannot be clearly erroneous. . . . [R]ecord
10 support for a contrary inference—even one more plausible or
11 more natural—does not suggest error.” (internal quotation
12 marks omitted)).
13 The adverse credibility determination is further
14 bolstered by the IJ’s observations of Xia’s demeanor. 8
15 U.S.C. § 1158(b)(1)(B)(iii); Jin Chen v. U.S. Dep’t of
16 Justice, 426 F.3d 104, 113 (2d Cir. 2005) (”We give particular
17 deference to credibility determinations that are based on the
18 adjudicator’s observation of the applicant’s
19 demeanor . . . .”). Xia does not meaningfully challenge the
20 demeanor finding, arguing only that her demeanor was
21 consistent and the IJ should have been more considerate of
22 her educational background and the length of time that had
5 1 passed since the events in China. The IJ’s observations,
2 however, that Xia was nonresponsive when asked about her
3 injuries and the absence of updated witness statements are
4 supported by the record. Accordingly, we defer to the
5 demeanor finding.
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17-143 Xia v. Sessions BIA Hom, IJ A200 184 285
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 TO 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 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 8th day of August, two thousand eighteen. 5 6 PRESENT: 7 DENNIS JACOBS, 8 DENNY CHIN, 9 CHRISTOPHER F. DRONEY, 10 Circuit Judges. 11 _____________________________________ 12 13 JINNA XIA, 14 15 Petitioner, 16 17 v. 17-143 18 NAC 19 20 JEFFERSON B. SESSIONS III, 21 UNITED STATES ATTORNEY GENERAL, 22 23 Respondent. 24 _____________________________________ 25 26 FOR PETITIONER: Raymond Lo, Jersey City, NJ. 27 28 1 FOR RESPONDENT: Chad A. Readler, Acting Assistant 2 Attorney General; Anthony P. 3 Nicastro, Assistant Director; D. 4 Nicholas Harling, Trial Attorney, 5 Office of Immigration Litigation, 6 United States Department of 7 Justice, Washington, DC. 8 9 UPON DUE CONSIDERATION of this petition for review of a
10 Board of Immigration Appeals (“BIA”) decision, it is hereby
11 ORDERED, ADJUDGED, AND DECREED that the petition for review
12 is DENIED.
13 Petitioner Jinna Xia, a native and citizen of the
14 People’s Republic of China, seeks review of a December 20,
15 2016, decision of the BIA affirming a November 5, 2015,
16 decision of an Immigration Judge (“IJ”) denying Xia’s
17 application for asylum, withholding of removal, and relief
18 under the Convention Against Torture (“CAT”). In re Jinna
19 Xia, No. A200 184 285 (B.I.A. Dec. 20, 2016), aff’g No. A200
20 184 285 (Immig. Ct. N.Y. City Nov. 5, 2015). We assume the
21 parties’ familiarity with the underlying facts and procedural
22 history in this case.
23 Under the circumstances of this case, we review the IJ’s
24 decision as modified by the BIA. See Xue Hong Yang v. U.S.
25 Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). The
26 applicable standards of review are well established. See
2 1 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d
2 162, 165-66 (2d Cir. 2008). For the reasons that follow, we
3 conclude that the agency did not err in finding that Xia
4 failed to credibly establish past persecution based on her
5 alleged arrest and detention in China for attending an
6 underground church, or establish an independent well-founded
7 fear of future persecution based on her practice of
8 Christianity in the United States.
9 I. Past Persecution
10 The governing REAL ID Act credibility standard provides
11 that the agency must “[c]onsider[] the totality of the
12 circumstances,” and may base a credibility finding on an
13 applicant’s “demeanor, candor, or responsiveness,” the
14 plausibility of her account, and inconsistencies or omissions
15 in her or her witness’s statements, “without regard to
16 whether” they go “to the heart of the applicant’s claim.” 8
17 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-
18 64, 166-67. “We defer . . . to an IJ’s credibility
19 determination unless . . . it is plain that no reasonable
20 fact-finder could make such an adverse credibility ruling.”
21 Xiu Xia Lin, 534 F.3d at 167.
3 1 Initially, as the Government observes, Xia has waived
2 review of the agency’s findings that her testimony and medical
3 record were inconsistent concerning her injuries and that her
4 corroborating evidence was insufficient to rehabilitate her
5 credibility by failing to challenge them in her brief. See
6 Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998)
7 (“Issues not sufficiently argued in the briefs are considered
8 waived and normally will not be addressed on appeal.”). These
9 findings therefore stand as appropriate bases for the
10 credibility determination. See Shunfu Li v. Mukasey, 529
11 F.3d 141, 146-47 (2d Cir. 2008) (discussing waiver of
12 credibility findings); Biao Yang v. Gonzales, 496 F.3d 268,
13 273 (2d Cir. 2007) (“An applicant’s failure to
14 corroborate . . . may bear on credibility, because the
15 absence of corroboration in general makes an applicant unable
16 to rehabilitate testimony that has already been called into
17 question.”).
18 In addition, the agency reasonably found, based on the
19 totality of the circumstances, that Xia’s testimony was not
20 credible. As the agency concluded, Xia was not responsive to
21 certain questions, she provided inconsistent answers to
22 certain questions, and she did not provide sufficient
4 1 corroborating evidence. See Majidi v. Gonzales, 430 F.3d 77,
2 80 (2d Cir. 2005) (“A petitioner must do more than offer a
3 plausible explanation for h[er] inconsistent statements to
4 secure relief; [s]he must demonstrate that a reasonable fact-
5 finder would be compelled to credit h[er] testimony.”
6 (internal quotation marks omitted)); Siewe v. Gonzales, 480
7 F.3d 160, 167-68 (2d Cir. 2007) (“Where there are two
8 permissible views of the evidence, the factfinder’s choice
9 between them cannot be clearly erroneous. . . . [R]ecord
10 support for a contrary inference—even one more plausible or
11 more natural—does not suggest error.” (internal quotation
12 marks omitted)).
13 The adverse credibility determination is further
14 bolstered by the IJ’s observations of Xia’s demeanor. 8
15 U.S.C. § 1158(b)(1)(B)(iii); Jin Chen v. U.S. Dep’t of
16 Justice, 426 F.3d 104, 113 (2d Cir. 2005) (”We give particular
17 deference to credibility determinations that are based on the
18 adjudicator’s observation of the applicant’s
19 demeanor . . . .”). Xia does not meaningfully challenge the
20 demeanor finding, arguing only that her demeanor was
21 consistent and the IJ should have been more considerate of
22 her educational background and the length of time that had
5 1 passed since the events in China. The IJ’s observations,
2 however, that Xia was nonresponsive when asked about her
3 injuries and the absence of updated witness statements are
4 supported by the record. Accordingly, we defer to the
5 demeanor finding. See Siewe, 480 F.3d at 168-69
6 (“[S]peculation that inheres in inference is not ‘bald’ if
7 the inference is made available to the factfinder by record
8 facts, or even a single fact, viewed in the light of common
9 sense and ordinary experience. So long as an inferential
10 leap is tethered to the evidentiary record, we will accord
11 deference to the finding.”).
12 Given the foregoing demeanor findings, as well as the
13 grounds over which Xia has waived review, the “totality of
14 the circumstances” supports the agency’s adverse credibility
15 determination. Xiu Xia Lin, 534 F.3d at 167. The agency
16 therefore did not err in concluding that Xia failed to
17 establish a credible claim of past persecution.
18 II. Future Persecution
19 Absent past persecution, an applicant may establish
20 eligibility for asylum by demonstrating an independent well-
21 founded fear of future persecution, which “is a subjective
22 fear that is objectively reasonable.” Dong Zhong Zheng v.
6 1 Mukasey, 552 F.3d 277, 284 (2d Cir. 2009) (internal quotation
2 marks omitted). “In the absence of solid support in the
3 record,” a fear of persecution is not well founded and “is
4 speculative at best.” Jian Xing Huang v. U.S. INS, 421 F.3d
5 125, 129 (2d Cir. 2005).
6 The Government is correct that Xia does not meaningfully
7 challenge the agency’s well-founded fear determination.
8 Although she generally asserts that the U.S. State
9 Department’s International Religious Freedom Report for 2011
10 demonstrates that her fear of future persecution is well
11 founded, we cannot consider that report because it is not
12 part of the administrative record. See 8 U.S.C.
13 § 1254(b)(4)(A) (providing that “the court of appeals shall
14 decide the petition only on the administrative record on which
15 the order of removal is based”). She does not challenge the
16 agency’s finding that the same report for 2013, of which the
17 IJ took administrative notice, reflected local variation in
18 China’s treatment of underground Christians and no targeting
19 of underground church members in Xia’s home region. See U.S.
20 State Dep’t 2013 Int’l Religious Freedom Report, at 1 (“In
21 some parts of the country, however, local authorities tacitly
22 approved of or did not interfere with the activities of
7 1 unregistered groups.”), available at
2 http://www.state.gov/documents/organization/222335.pdf. Xia
3 has therefore failed to demonstrate error in the agency’s
4 well-founded fear determination. See Jian Hui Shao v.
5 Mukasey, 546 F.3d 138, 149-50, 165-66 (2d Cir. 2008) (holding
6 that when a fear of persecution is claimed based on
7 enforcement of a policy that varies by region, it is the
8 applicant’s burden to show enforcement of the policy in her
9 home region). Accordingly, because the agency reasonably
10 found that Xia failed to demonstrate an objectively
11 reasonable fear of future persecution, it did not err in
12 denying asylum or in concluding that she necessarily failed
13 to meet the higher burdens for withholding of removal and CAT
14 relief. Y.C. v. Holder, 741 F.3d 324, 335 (2d Cir. 2013).
15 For the foregoing reasons, the petition for review is
16 DENIED.
17 FOR THE COURT: 18 Catherine O’Hagan Wolfe, 19 Clerk of Court