         11-4122                                                                       BIA
         Wang v. Holder                                                         Mulligan, IJ
                                                                               A088 372 122



                           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 27th day of August, two thousand twelve.
 5
 6       PRESENT:
 7                JON O. NEWMAN,
 8                REENA RAGGI,
 9                RAYMOND J. LOHIER, JR.,
10                     Circuit Judges.
11       _____________________________________
12
13       XIAOFANG WANG,
14                Petitioner,
15
16                        v.                                    11-4122
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Gary Yerman, New York, New York.
24
25       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
26                                     Attorney General; Linda S. Wernery,
27                                     Assistant Director, Walter Bocchini;
28                                     Trial Attorney, Office of
29                                     Immigration Litigation, United
30                                     States Department of Justice,
31                                     Washington, D.C.
 1        UPON DUE CONSIDERATION of this petition for review of a

 2   Board of Immigration Appeals (“BIA”) decision, it is hereby

 3   ORDERED, ADJUDGED, AND DECREED that the petition for review

 4   is DENIED.

 5        Xiaofang Wang, a native and citizen of the People’s

 6   Republic of China, seeks review of a September 15, 2011,

 7   decision of the BIA affirming the September 26, 2008,

 8   decision of an Immigration Judge (“IJ”), which denied his

 9   application for asylum, withholding of removal, and relief

10   under the Convention Against Torture (“CAT”).     In re

11   Xiaofang Wang, No. A088 372 122 (B.I.A. Sept. 15, 2011),

12   aff’g No. A088 372 122 (Immig. Ct. N.Y. City, Sept. 26,

13   2008).     We assume the parties’ familiarity with the

14   underlying facts and procedural history in this case.

15        We have reviewed the IJ’s decision as supplemented by

16   the BIA.     See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d

17   Cir. 2005).     The applicable standards of review are well

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

19   Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008).

20   I.   Credibility

21        For asylum applications, like Wang’s, governed by the

22   REAL ID Act, the agency may, “[c]onsidering the totality of

23   the circumstances, . . . base a credibility determination on

                                     2
 1   the demeanor, candor or responsiveness of the applicant, . .

 2   . [and] the consistency between the applicant’s or witness’s

 3   written and oral statements, . . . without regard to whether

 4   an inconsistency . . . goes to the heart of the applicant’s

 5   claim.”   See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534

 6   F.3d at 167.   We “defer to an IJ’s credibility determination

 7   unless, from the totality of the circumstances, it is plain

 8   that no reasonable fact-finder could make such an adverse

 9   credibility ruling.”   Xiu Xia Lin, 534 F.3d at 167.

10       In finding that Wang’s demeanor reflected negatively on

11   her credibility, the agency concluded that her demeanor was

12   designed to “curry favor” with the court and that she

13   displayed emotions and various facial expressions that were

14   “contrived.”   A reviewing court grants “particular

15   deference” in applying the substantial evidence standard to

16   credibility findings based on demeanor.     Dong Gao v. BIA,

17   482 F.3d 122, 126-27 (2d Cir. 2007).    Here, the IJ’s

18   credibility determination is based on physical observations

19   to which “particular deference” is due.     Id.

20       The adverse credibility determination is further

21   supported by inconsistencies in the record concerning the

22   number of times Wang was detained.     See Xiu Xia Lin, 534


                                   3
 1   F.3d at 167 (holding that “an IJ may rely on any

 2   inconsistency or omission in making an adverse credibility

 3   determination . . .”).   In her asylum application Wang

 4   listed only a single incident in which she and her

 5   colleagues were taken to a police station and held for

 6   questioning.   However, before the IJ, Wang stated that she

 7   had been held by the police five or six times. The IJ was

 8   not required to credit Wang’s explanation for the omission,

 9   that she listed only the major incident in her application

10   and intended to supplement the application with testimony,

11   particularly given the centrality of any arrest to her claim

12   and her statement in her application that during the

13   relevant period she was harassed by the authorities.      See

14   Xiu Xia Lin, 534 F.3d at 167; see Majidi v. Gonzales, 430

15   F.3d 77, 80-81 (2d Cir. 2005) (the agency need not credit an

16   applicant’s explanations for inconsistent testimony unless

17   those explanations would compel a reasonable fact-finder to

18   do so).

19       Having questioned Wang’s credibility, the agency

20   reasonably relied on her failure to provide sufficient

21   evidence to corroborate her claim.   See Biao Yang v.

22   Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (“[T]he absence


                                   4
 1   of corroboration in general makes an applicant unable to

 2   rehabilitate testimony that has already been called into

 3   question.”).   The agency was not required to credit the

 4   affidavits Wang submitted, as the affidavits did not confirm

 5   any specific arrests or other incidents of persecution.      See

 6   Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d

 7   Cir. 2006) (the weight to be afforded to an applicant’s

 8   evidence in immigration proceedings lies largely within the

 9   discretion of the agency).   Accordingly, given the demeanor

10   finding, inconsistency, and lack of corroboration, the

11   agency’s adverse credibility determination is supported by

12   substantial evidence.   See 8 U.S.C. § 1158(b)(1)(B)(iii);

13   Xiu Xia Lin, 534 F.3d at 165-66.

14   II. Future Persecution Based on U.S. Activities

15       Nor did the BIA err in determining that Wang’s

16   activities in the U.S. did not establish an objective

17   likelihood of future persecution.   To establish asylum

18   eligibility based on future persecution, an applicant must

19   show that he or she subjectively fears persecution and that

20   this fear is objectively reasonable.   Ramsameachire v.

21   Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004).   A fear is not

22   objectively reasonable if it lacks “solid support” in the

23   record and is merely “speculative at best.”   Jian Xing Huang
                                   5
 1   v. INS, 421 F.3d 125, 129 (2d Cir. 2005).    Thus, an

 2   applicant claiming a prospective fear of persecution must

 3   make some showing that the government is aware or is likely

 4   to become aware of his or her activities.    See Hongsheng

 5   Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir. 2008).      Although

 6   the evidence Wang submitted – affidavits confirming her

 7   participation in U.S.-based demonstrations and photographs

 8   of her participation in these demonstrations – confirms her

 9   activities, it fails to show that the Chinese government is

10   aware or likely to become aware of such activities.      Id.

11       For the foregoing reasons, the petition for review is

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

13   removal that the Court previously granted in this petition

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

15   this petition is DISMISSED as moot. Any pending request for

16   oral argument in this petition is DENIED in accordance with

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

18   Circuit Local Rule 34.1(b).

19                                 FOR THE COURT:
20                                 Catherine O’Hagan Wolfe, Clerk
21
22




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