         11-5211                                                                        BIA
         Jin v. Holder                                                              Hom, IJ
                                                                               A087 438 535



                          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 23rd day of August, two thousand twelve.
 5
 6       PRESENT:
 7                GUIDO CALABRESI,
 8                RICHARD C. WESLEY,
 9                DEBRA ANN LIVINGSTON,
10                     Circuit Judges.
11       _____________________________________
12
13       MEI HUA JIN,
14                Petitioner,
15
16                       v.                                     11-5211
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Evan Goldberg, Law Office of
24                                     Theodore M. Davis, New York, New
25                                     York.
26
27       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
28                                     Attorney General; Paul Fiorino,
29                                     Senior Litigation Counsel; Deitz P.
 1                            Lefort, Trial Attorney, Office of
 2                            Immigration Litigation, United
 3                            States Department of Justice,
 4                            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       Mei Hua Jin, a native and citizen of the People’s

11   Republic of China, seeks review of a November 21, 2011,

12   decision of the BIA affirming the December 9, 2009, decision

13   of Immigration Judge (“IJ”) Sandy K. Hom, which denied her

14   application for asylum, withholding of removal and relief

15   under the Convention Against Torture (“CAT”).    In re Mei Hua

16   Jin, No. A087 438 535 (B.I.A. Nov. 21, 2011), aff’g No. A087

17   438 535 (Immig. Ct. N.Y. City Dec. 9, 2009).    We assume the

18   parties’ familiarity with the underlying facts and

19   procedural history in this case.

20       Under the circumstances of this case, we have reviewed

21   the IJ’s decision as modified by the BIA decision.    See Xue

22   Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d

23   Cir. 2005).    The applicable standards of review are well-

24   established.    See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia

25   Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (per


                                    2
 1   curiam).   Jin effectively challenges two agency findings:

 2   (1) her testimony regarding her claim that she provided

 3   assistance to North Korean refugees in China was not

 4   credible; and (2) her testimony that she converted to

 5   Christianity in the United States did not establish a well-

 6   founded fear of persecution.

 7       For asylum applications, such as Jin’s, governed by the

 8   amendments made to the Immigration and Nationality Act by

 9   the REAL ID Act of 2005, the agency may, considering the

10   totality of the circumstances, base a credibility finding on

11   the consistency between an applicant’s written and oral

12   statements, without regard to whether an inconsistency goes

13   “to the heart of the applicant’s claim.”   See 8 U.S.C.

14   § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167.

15       Here, the agency reasonably found that Jin’s testimony

16   regarding her refugee assistance claim was incredible

17   because her testimony that her interaction with the Chinese

18   police ended with a stern warning was inconsistent with her

19   asylum application, which stated that the “[p]olice were

20   sent to arrest me, but I was able to avoid them.”     See Xiu

21   Xia Lin, 534 F.3d at 167.   Jin’s arguments that this

22   inconsistency was “a matter of semantics” and “too minor” to


                                    3
 1   support an adverse credibility determination are inadequate

 2   to establish that “no reasonable fact-finder could make such

 3   an adverse credibility ruling” based on the noted

 4   inconsistency.    Id. (finding that “an IJ may rely on any

 5   inconsistency or omission in making an adverse credibility

 6   determination as long as the totality of the circumstances

 7   establishes that an asylum applicant is not credible”)

 8   (emphasis in original) (internal quotation marks omitted).

 9   Moreover, Jin’s argument that the agency’s adverse

10   credibility determination was predicated on “improper

11   factors,” including her ability to reside safely in China

12   for more than a year without arrest and her ability to leave

13   China “without harassment by authorities,” is not supported

14   by the record, because the BIA did not rely on those factors

15   in determining that the adverse credibility finding was not

16   clearly erroneous, but rather found that these factors

17   showed there was not a well-founded fear of future

18   persecution even assuming credibility.    Accordingly, because

19   the totality of the circumstances supports the agency’s

20   adverse credibility determination, we defer to that finding.

21   See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at

22   167.

23          The government’s argument that Jin failed to exhaust

24   her claim that she has a well-founded fear of persecution in

                                    4
 1   China based on her conversion to Christianity in the United

 2   States is unavailing because the BIA elected to address that

 3   argument, even though Jin did not raise it before the

 4   agency.    See Waldron v. INS, 17 F.3d 511, 515 n. 7 (2d Cir.

 5   1994).    However, the agency reasonably determined that Jin

 6   failed to establish a well-founded fear of persecution on

 7   account of her practice of Christianity, because she failed

 8   to produce or cite any record evidence suggesting that

 9   Chinese authorities are either aware or likely to become

10   aware of her practice of Christianity in the United States.

11   See Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir.

12   2008) (per curiam).

13       Finally, Jin has waived her CAT claim and any challenge

14   to the agency’s finding that she did not establish past

15   persecution in China.    Furthermore, the failure of her

16   asylum claims necessarily precludes success on her claims

17   for withholding of removal.    See Paul v. Gonzales, 444 F.3d

18   148, 156 (2d Cir. 2006).

19       For the foregoing reasons, the petition for review is

20   DENIED.    As we have completed our review, any stay of

21   removal that the Court previously granted in this petition

22   is VACATED, and any pending motion for a stay of removal in

23   this petition is DISMISSED as moot. Any pending request for
                                   5
1   oral argument in this petition is DENIED in accordance with

2   Federal Rule of Appellate Procedure 34(a)(2), and Second

3   Circuit Local Rule 34.1(b).

4                                 FOR THE COURT:
5                                 Catherine O’Hagan Wolfe, Clerk
6
7
8




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