     Case: 11-60082     Document: 00511692428         Page: 1     Date Filed: 12/12/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        December 12, 2011
                                     No. 11-60082
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

XINYUE 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. A089 099 730


Before JONES, Chief Judge, and HAYNES and GRAVES, Circuit Judges.
PER CURIAM:*
        Xinyue Wu (Wu), a citizen of the People’s Republic of China, petitions for
review of the order of the Board of Immigration Appeals (BIA) dismissing her
appeal of the order of the Immigration Judge (IJ) denying her application for
asylum and withholding of removal. Wu contends that the BIA and IJ erred by
finding her noncredible. She asserts that she established past persecution, a
well-founded fear of future persecution, eligibility for withholding of removal,
and eligibility under the Convention Against Torture (CAT) based on her forced

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-60082

abortion and near-arrest for her religious activities. Wu suggests that the IJ
was merely looking for a way to deny her relief and construed the evidence
accordingly.
         This court is authorized to review the order of the BIA. Chun v. INS,
40 F.3d 76, 78 (5th Cir. 1994). However, where the IJ’s findings impacted the
BIA’s decision, the court may review the IJ’s findings. See id. Factual findings
are reviewed for substantial evidence. Zhu v. Gonzales, 493 F.3d 588, 594 (5th
Cir. 2007).     “Under this standard, reversal is improper unless [the court]
decide[s] not only that the evidence supports a contrary conclusion, but [also]
that the evidence compels it.” Zhang v. Gonzales, 432 F.3d 339, 344 (5th Cir.
2005) (internal quotation marks and citation omitted). Among the findings of
fact that this court reviews for substantial evidence is the conclusion that an
alien is not eligible for asylum, withholding of removal, or relief under the CAT.
Id.
         “[A]n 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.” Wang v. Holder, 569 F.3d 531, 538
(5th Cir. 2009) (internal quotation marks and citation omitted). Where the
petitioner challenges the denial of asylum or withholding of removal by
attacking the underlying credibility finding, this court will deny the petition if
the “adverse credibility finding is supported by substantial evidence.” Id. at 540.
Therefore, this court will defer to the immigration court’s decision “unless, from
the totality of the circumstances, it is plain that no reasonable fact-finder could
make such an adverse credibility ruling.” Id. at 538 (internal quotation and
citation omitted).
         The adverse credibility findings of the IJ and BIA are supported by
substantial evidence. Presbyter Ai Guang Zheng wrote that Wu left China for
the United States to reunite with her husband. He said nothing about Wu’s
involvement in any illegal proselytizing activities that might have drawn the

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                                  No. 11-60082

attention of police, nor did he address the legal status of his own church. Wu
wrote in her asylum application statement that she learned of the arrests of two
church members when she was hiding at her aunt’s residence. She testified at
the hearing, however, that the arrests occurred when she first joined the church,
and that only one person, Mei Le, was actually arrested. Zheng’s certificate and
Wu’s contradictory testimony as to the timing of the arrest of church members
undermined the credibility of her claim to have come to the United States to
escape religious persecution.
      “[A] person who has been forced to abort a pregnancy . . . shall be deemed
to have been persecuted on account of political opinion.” 8 U.S.C. § 1101(a)(42).
Moreover, a woman “who has a well founded fear that . . . she will be forced to
undergo such a procedure . . . shall be deemed to have a well founded fear of
persecution on account of political opinion.” Wu, however, failed to inform the
asylum officer that she had been physically forced to have an abortion, despite
being asked open-ended questions that would have allowed her to do so.
Moreover, Wu testified that Chinese authorities will allow her to have a second
child because her first child is a girl, and, according to the State Department,
Zhejiang province (where Wu resided) allows eligible couples to have a second
child four years after the birth of their first. Wu’s forced abortion claim was
undermined by her failure to inform the asylum officer, and she was unable to
demonstrate a well-founded fear of being subjected to a forced abortion on return
to China.
      In addition to evidence undermining the credibility of the particular claims
of persecution, Wu’s testimony that her first husband, Xiao Long Gu, left China
on May 5, whether in 2000 or 2002, was contradicted by a 2004 divorce
document, which gave a departure date of March 2001. Wu told the asylum
officer that she had an uncle in the United States; she did not inform the officer
that both her ex-husband and then-husband were in the country.



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                                  No. 11-60082

      In light of the discrepancies, Wu fails to demonstrate that “it is plain that
no reasonable fact-finder could make . . . an adverse credibility ruling.” Wang,
569 F.3d at 538 (internal quotation marks and citation omitted). Accordingly,
the credibility determination is supported by substantial evidence. See id.
      To the extent Wu raises a separate claim that the IJ was biased against
her, she did not raise any such claim in her appeal to the BIA. She failed to
exhaust the issue, and this court lacks jurisdiction to consider it. See Omari v.
Holder, 562 F.3d 314, 318-19 (5th Cir. 2009).
      PETITION DENIED.




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