     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




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