17-584 Xu v. Sessions BIA Poczter, IJ A206 280 465
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 17th day of August, two thousand eighteen. 5 6 PRESENT: 7 DENNIS JACOBS, 8 RAYMOND J. LOHIER, JR., 9 CHRISTOPHER F. DRONEY, 10 Circuit Judges. 11 _____________________________________ 12 13 DI XU, 14 Petitioner, 15 16 v. 17-584 17 NAC 18 JEFFERSON B. SESSIONS III, 19 UNITED STATES ATTORNEY GENERAL, 20 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: John W. Reinhardt, Huntington, 25 NY. 26 27 FOR RESPONDENT: Chad A. Readler, Principal 28 Deputy Assistant Attorney 29 General; Carl McIntyre, 30 Assistant Director; Nancy E. 1 Friedman, Senior Litigation 2 Counsel, Office of Immigration 3 Litigation, United States 4 Department of Justice, 5 Washington, DC. 6 7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review
10 is DENIED.
11 Petitioner Di Xu, a native and citizen of the People’s
12 Republic of China, seeks review of a February 2, 2017,
13 decision of the BIA affirming a November 9, 2015, decision
14 of an Immigration Judge (“IJ”) denying Xu’s application for
15 asylum, withholding of removal, and relief under the
16 Convention Against Torture (“CAT”). In re Di Xu, No. A206
17 280 465 (B.I.A. Feb. 2, 2017), aff’g No. A206 280 465
18 (Immig. Ct. N.Y. City Nov. 9, 2015). We assume the parties’
19 familiarity with the underlying facts and procedural
20 history in this case.
21 Under the circumstances of this case, we have reviewed
22 the IJ’s decision as modified and supplemented by the BIA.
23 See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522
24 (2d Cir. 2005); Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d
25 Cir. 2005). The applicable standards of review are well
2 1 established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.
2 Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).
3 The governing REAL ID Act credibility standard provides
4 that the agency must “[c]onsider[] the totality of the
5 circumstances,” and may base a credibility finding on
6 inconsistencies in the applicant’s or her witnesses’
7 statements. 8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu Xia
8 Lin, 534 F.3d at 163-64, 166-67. “We defer . . . to an IJ’s
9 credibility determination unless . . . it is plain that no
10 reasonable fact-finder could make such an adverse
11 credibility ruling.” Xiu Xia Lin, 534 F.3d at 167. The
12 adverse credibility determination is supported by
13 substantial evidence.
14 First, the agency reasonably relied on the inconsistency
15 between Xu’s testimony and application about the Chinese
16 government’s awareness of her U.S. Falun Gong activities.
17 Id. at 163-64. When asked why she was afraid to return to
18 China, Xu testified that it was possible that the Chinese
19 government had discovered her activities because she
20 participated in public protests and worked at a pro-Falun
21 Gong television station; however, Xu stated in her
22 application that the police visited her mother in China after
3 1 discovering Xu’s Falun Gong activities in the United States.
2 The agency was entitled to reject Xu’s explanation—that the
3 local police were aware of her U.S. activities but she was
4 unsure whether Chinese officials also knew—because it did not
5 resolve why she had not cited the awareness of the police in
6 her testimony about why she was afraid to return. Majidi v.
7 Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must
8 do more than offer a plausible explanation for h[er]
9 inconsistent statements to secure relief; [s]he must
10 demonstrate that a reasonable fact-finder would be compelled
11 to credit h[er] testimony.” (internal quotation marks
12 omitted)). This inconsistency is significant because Xu
13 largely based her claim on her activities in the United
14 States. See Hongsheng Leng v. Mukasey, 528 F.3d 135, 138 (2d
15 Cir. 2008) (“[I]n order to establish eligibility for relief
16 based exclusively on activities undertaken after . . . arrival
17 in the United States, an alien must make some showing that
18 authorities in h[er] country of nationality are (1) aware of
19 h[er] activities or (2) likely to become aware of h[er]
20 activities.”).
21 Second, the agency reasonably relied on the omission of
22 the police’s visit from Xu’s mother’s letter. Xiu Xia Lin,
4 1 534 F.3d at 167 (affirming adverse credibility determination
2 based, in part, on omissions from corroborating letters).
3 Although Xu’s mother mentioned Xu’s work at the television
4 station, she did not mention that the police had visited her
5 home and threatened Xu because of these activities. Xu had
6 no explanation for the omission and her mother’s letter was
7 otherwise detailed. See Majidi, 430 F.3d at 80; Hong Fei Gao
8 v. Sessions, 891 F.3d 67, 82 (2d Cir. 2018) (finding that
9 agency did not err in relying on omission from applicant’s
10 mother’s letter of applicant’s beating by police because the
11 letter “discusse[d] other post-arrest events”).
12 Third, the agency did not err in finding Xu’s
13 corroborating evidence insufficient to rehabilitate her
14 credibility. Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d
15 Cir. 2007) (“An applicant’s failure to corroborate his or her
16 testimony may bear on credibility, because the absence of
17 corroboration in general makes an applicant unable to
18 rehabilitate testimony that has already been called into
19 question.”). Xu does not specifically challenge the finding
20 that her witnesses lacked firsthand knowledge of her
21 experiences in China or current conditions. Nor does she
22 challenge the IJ’s decision to give limited weight to her
5 1 mother’s letter, which was reasonable as the letter was
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17-584 Xu v. Sessions BIA Poczter, IJ A206 280 465
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 17th day of August, two thousand eighteen. 5 6 PRESENT: 7 DENNIS JACOBS, 8 RAYMOND J. LOHIER, JR., 9 CHRISTOPHER F. DRONEY, 10 Circuit Judges. 11 _____________________________________ 12 13 DI XU, 14 Petitioner, 15 16 v. 17-584 17 NAC 18 JEFFERSON B. SESSIONS III, 19 UNITED STATES ATTORNEY GENERAL, 20 21 Respondent. 22 _____________________________________ 23 24 FOR PETITIONER: John W. Reinhardt, Huntington, 25 NY. 26 27 FOR RESPONDENT: Chad A. Readler, Principal 28 Deputy Assistant Attorney 29 General; Carl McIntyre, 30 Assistant Director; Nancy E. 1 Friedman, Senior Litigation 2 Counsel, Office of Immigration 3 Litigation, United States 4 Department of Justice, 5 Washington, DC. 6 7 UPON DUE CONSIDERATION of this petition for review of a
8 Board of Immigration Appeals (“BIA”) decision, it is hereby
9 ORDERED, ADJUDGED, AND DECREED that the petition for review
10 is DENIED.
11 Petitioner Di Xu, a native and citizen of the People’s
12 Republic of China, seeks review of a February 2, 2017,
13 decision of the BIA affirming a November 9, 2015, decision
14 of an Immigration Judge (“IJ”) denying Xu’s application for
15 asylum, withholding of removal, and relief under the
16 Convention Against Torture (“CAT”). In re Di Xu, No. A206
17 280 465 (B.I.A. Feb. 2, 2017), aff’g No. A206 280 465
18 (Immig. Ct. N.Y. City Nov. 9, 2015). We assume the parties’
19 familiarity with the underlying facts and procedural
20 history in this case.
21 Under the circumstances of this case, we have reviewed
22 the IJ’s decision as modified and supplemented by the BIA.
23 See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522
24 (2d Cir. 2005); Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d
25 Cir. 2005). The applicable standards of review are well
2 1 established. See 8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v.
2 Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).
3 The governing REAL ID Act credibility standard provides
4 that the agency must “[c]onsider[] the totality of the
5 circumstances,” and may base a credibility finding on
6 inconsistencies in the applicant’s or her witnesses’
7 statements. 8 U.S.C. § 1158(b)(1)(B)(iii); see also Xiu Xia
8 Lin, 534 F.3d at 163-64, 166-67. “We defer . . . to an IJ’s
9 credibility determination unless . . . it is plain that no
10 reasonable fact-finder could make such an adverse
11 credibility ruling.” Xiu Xia Lin, 534 F.3d at 167. The
12 adverse credibility determination is supported by
13 substantial evidence.
14 First, the agency reasonably relied on the inconsistency
15 between Xu’s testimony and application about the Chinese
16 government’s awareness of her U.S. Falun Gong activities.
17 Id. at 163-64. When asked why she was afraid to return to
18 China, Xu testified that it was possible that the Chinese
19 government had discovered her activities because she
20 participated in public protests and worked at a pro-Falun
21 Gong television station; however, Xu stated in her
22 application that the police visited her mother in China after
3 1 discovering Xu’s Falun Gong activities in the United States.
2 The agency was entitled to reject Xu’s explanation—that the
3 local police were aware of her U.S. activities but she was
4 unsure whether Chinese officials also knew—because it did not
5 resolve why she had not cited the awareness of the police in
6 her testimony about why she was afraid to return. Majidi v.
7 Gonzales, 430 F.3d 77, 80 (2d Cir. 2005) (“A petitioner must
8 do more than offer a plausible explanation for h[er]
9 inconsistent statements to secure relief; [s]he must
10 demonstrate that a reasonable fact-finder would be compelled
11 to credit h[er] testimony.” (internal quotation marks
12 omitted)). This inconsistency is significant because Xu
13 largely based her claim on her activities in the United
14 States. See Hongsheng Leng v. Mukasey, 528 F.3d 135, 138 (2d
15 Cir. 2008) (“[I]n order to establish eligibility for relief
16 based exclusively on activities undertaken after . . . arrival
17 in the United States, an alien must make some showing that
18 authorities in h[er] country of nationality are (1) aware of
19 h[er] activities or (2) likely to become aware of h[er]
20 activities.”).
21 Second, the agency reasonably relied on the omission of
22 the police’s visit from Xu’s mother’s letter. Xiu Xia Lin,
4 1 534 F.3d at 167 (affirming adverse credibility determination
2 based, in part, on omissions from corroborating letters).
3 Although Xu’s mother mentioned Xu’s work at the television
4 station, she did not mention that the police had visited her
5 home and threatened Xu because of these activities. Xu had
6 no explanation for the omission and her mother’s letter was
7 otherwise detailed. See Majidi, 430 F.3d at 80; Hong Fei Gao
8 v. Sessions, 891 F.3d 67, 82 (2d Cir. 2018) (finding that
9 agency did not err in relying on omission from applicant’s
10 mother’s letter of applicant’s beating by police because the
11 letter “discusse[d] other post-arrest events”).
12 Third, the agency did not err in finding Xu’s
13 corroborating evidence insufficient to rehabilitate her
14 credibility. Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d
15 Cir. 2007) (“An applicant’s failure to corroborate his or her
16 testimony may bear on credibility, because the absence of
17 corroboration in general makes an applicant unable to
18 rehabilitate testimony that has already been called into
19 question.”). Xu does not specifically challenge the finding
20 that her witnesses lacked firsthand knowledge of her
21 experiences in China or current conditions. Nor does she
22 challenge the IJ’s decision to give limited weight to her
5 1 mother’s letter, which was reasonable as the letter was
2 unsworn, from an interested witness, and omitted material
3 information. Contrary to Xu’s position, the IJ reasonably
4 discounted photographs of Xu’s practice of Falun Gong because
5 Xu did not provide any foundation for them. See Xiao Ji Chen
6 v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006)
7 (observing that the weight accorded to an applicant’s
8 “evidence lie[s] largely within the discretion of the IJ.”
9 (internal quotation marks omitted)).
10 Given the inconsistency and omission, which relate to
11 the main basis for Xu’s fear of future persecution, as well
12 as the lack of reliable corroboration, the “totality of the
13 circumstances” supports the agency’s adverse credibility
14 determination. See Xiu Xia Lin, 534 F.3d at 166-67 (“Where
15 the IJ’s adverse credibility finding is based on specific
16 examples . . . of inconsistent statements or contradictory
17 evidence, a reviewing court will generally not be able to
18 conclude that a reasonable adjudicator was compelled to find
19 otherwise.” (internal quotation marks omitted)); Siewe v.
20 Gonzales, 480 F.3d 160, 170 (2d Cir. 2007) (“So a single false
21 document or a single instance of false testimony may (if
22 attributable to the petitioner) infect the balance of the
6 1 alien’s uncorroborated or unauthenticated evidence.”). The
2 adverse credibility determination is dispositive of asylum,
3 withholding of removal, and CAT relief because all three
4 claims are based on the same factual predicate. See Paul v.
5 Gonzales, 444 F.3d 148, 156-57 (2d Cir. 2006).
6 Xu’s remaining arguments fail. She did not exhaust any
7 claim of bias and the record does not support the claim. See
8 Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 122 (2d
9 Cir. 2007) (discussing issue exhaustion). Further, as the
10 BIA found, Xu asserted a fear of harm based on her own
11 activities, not that she would be targeted on account of her
12 family’s practice of Falung Gong. And she cannot establish
13 her own past persecution based on mistreatment of others.
14 Tao Jiang v. Gonzales, 500 F.3d 137, 141 (2d Cir. 2007) (“[A]n
15 applicant must rely upon harm the applicant has suffered
16 individually.”).
17 For the foregoing reasons, the petition for review is
18 DENIED. As we have completed our review, any stay of removal
19 that the Court previously granted in this petition is VACATED,
20 and any pending motion for a stay of removal in this petition
21 is DISMISSED as moot. Any pending request for oral argument
22 in this petition is DENIED in accordance with Federal Rule of
7 1 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
2 34.1(b).
3 FOR THE COURT: 4 Catherine O’Hagan Wolfe 5 Clerk of Court