     17-143
     Xia v. Sessions
                                                                                  BIA
                                                                               Hom, IJ
                                                                          A200 184 285


                            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 8th day of August, two thousand eighteen.
 5
 6   PRESENT:
 7            DENNIS JACOBS,
 8            DENNY CHIN,
 9            CHRISTOPHER F. DRONEY,
10                 Circuit Judges.
11   _____________________________________
12
13   JINNA XIA,
14
15                           Petitioner,
16
17                     v.                                        17-143
18                                                               NAC
19
20   JEFFERSON B. SESSIONS III,
21   UNITED STATES ATTORNEY GENERAL,
22
23                 Respondent.
24   _____________________________________
25
26   FOR PETITIONER:                       Raymond Lo, Jersey City, NJ.
27
28
1    FOR RESPONDENT:                     Chad A. Readler, Acting Assistant
2                                        Attorney General; Anthony P.
3                                        Nicastro, Assistant Director; D.
4                                        Nicholas Harling, Trial Attorney,
5                                        Office of Immigration Litigation,
6                                        United   States   Department   of
7                                        Justice, Washington, DC.
8
9        UPON DUE CONSIDERATION of this petition for review of a

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

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

12   is DENIED.

13       Petitioner       Jinna   Xia,    a   native    and     citizen    of   the

14   People’s Republic of China, seeks review of a December 20,

15   2016, decision of the BIA affirming a November 5, 2015,

16   decision   of   an    Immigration        Judge    (“IJ”)    denying    Xia’s

17   application for asylum, withholding of removal, and relief

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

19   Xia, No. A200 184 285 (B.I.A. Dec. 20, 2016), aff’g No. A200

20   184 285 (Immig. Ct. N.Y. City Nov. 5, 2015).                 We assume the

21   parties’ familiarity with the underlying facts and procedural

22   history in this case.

23       Under the circumstances of this case, we review the IJ’s

24   decision as modified by the BIA.            See Xue Hong Yang v. U.S.

25   Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).                        The

26   applicable standards of review are well established.                       See


                                          2
1    8 U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d

2    162, 165-66 (2d Cir. 2008).          For the reasons that follow, we

3    conclude that the agency did not err in finding that Xia

4    failed to credibly establish past persecution based on her

5    alleged       arrest    and   detention    in    China      for    attending    an

6    underground church, or establish an independent well-founded

7    fear    of     future    persecution       based     on     her    practice     of

8    Christianity in the United States.

9    I.     Past Persecution

10          The governing REAL ID Act credibility standard provides

11   that    the    agency    must   “[c]onsider[]        the    totality     of    the

12   circumstances,” and may base a credibility finding on an

13   applicant’s       “demeanor,      candor,       or   responsiveness,”          the

14   plausibility of her account, and inconsistencies or omissions

15   in    her    or   her   witness’s   statements,           “without    regard    to

16   whether” they go “to the heart of the applicant’s claim.”                        8

17   U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-

18   64,    166-67.          “We   defer . . . to         an     IJ’s     credibility

19   determination unless . . . it is plain that no reasonable

20   fact-finder could make such an adverse credibility ruling.”

21   Xiu Xia Lin, 534 F.3d at 167.




                                            3
1           Initially, as the Government observes, Xia has waived

2    review of the agency’s findings that her testimony and medical

3    record were inconsistent concerning her injuries and that her

4    corroborating evidence was insufficient to rehabilitate her

5    credibility by failing to challenge them in her brief.                          See

6    Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998)

7    (“Issues not sufficiently argued in the briefs are considered

8    waived and normally will not be addressed on appeal.”). These

9    findings       therefore    stand     as      appropriate     bases     for     the

10   credibility determination.                See Shunfu Li v. Mukasey, 529

11   F.3d    141,    146-47     (2d     Cir.    2008)      (discussing     waiver    of

12   credibility findings); Biao Yang v. Gonzales, 496 F.3d 268,

13   273     (2d     Cir.       2007)     (“An       applicant’s         failure      to

14   corroborate . .        .   may     bear    on       credibility,     because    the

15   absence of corroboration in general makes an applicant unable

16   to rehabilitate testimony that has already been called into

17   question.”).

18          In addition, the agency reasonably found, based on the

19   totality of the circumstances, that Xia’s testimony was not

20   credible. As the agency concluded, Xia was not responsive to

21   certain    questions,       she    provided          inconsistent     answers    to

22   certain    questions,       and     she       did    not   provide    sufficient


                                               4
1    corroborating evidence. See Majidi v. Gonzales, 430 F.3d 77,

2    80 (2d Cir. 2005) (“A petitioner must do more than offer a

3    plausible explanation for h[er] inconsistent statements to

4    secure relief; [s]he must demonstrate that a reasonable fact-

5    finder       would      be    compelled     to     credit     h[er]   testimony.”

6    (internal quotation marks omitted)); Siewe v. Gonzales, 480

7    F.3d    160,       167-68     (2d    Cir.   2007)       (“Where    there   are     two

8    permissible views of the evidence, the factfinder’s choice

9    between          them   cannot      be   clearly      erroneous. . . . [R]ecord

10   support for a contrary inference—even one more plausible or

11   more natural—does not suggest error.” (internal quotation

12   marks omitted)).

13          The        adverse     credibility        determination        is    further

14   bolstered by the IJ’s observations of Xia’s demeanor.                                8

15   U.S.C.       §    1158(b)(1)(B)(iii);           Jin   Chen   v.    U.S.    Dep’t    of

16   Justice, 426 F.3d 104, 113 (2d Cir. 2005) (”We give particular

17   deference to credibility determinations that are based on the

18   adjudicator’s                observation           of        the      applicant’s

19   demeanor . . . .”).              Xia does not meaningfully challenge the

20   demeanor          finding,     arguing      only      that   her    demeanor       was

21   consistent and the IJ should have been more considerate of

22   her educational background and the length of time that had


                                                 5
1    passed since the events in China.        The IJ’s observations,

2    however, that Xia was nonresponsive when asked about her

3    injuries and the absence of updated witness statements are

4    supported by the record.       Accordingly, we defer to the

5    demeanor   finding.      See   Siewe,    480   F.3d       at   168-69

6    (“[S]peculation that inheres in inference is not ‘bald’ if

7    the inference is made available to the factfinder by record

8    facts, or even a single fact, viewed in the light of common

9    sense and ordinary experience.      So long as an inferential

10   leap is tethered to the evidentiary record, we will accord

11   deference to the finding.”).

12       Given the foregoing demeanor findings, as well as the

13   grounds over which Xia has waived review, the “totality of

14   the circumstances” supports the agency’s adverse credibility

15   determination.   Xiu Xia Lin, 534 F.3d at 167.            The agency

16   therefore did not err in concluding that Xia failed to

17   establish a credible claim of past persecution.

18   II. Future Persecution

19       Absent   past   persecution,   an   applicant   may    establish

20   eligibility for asylum by demonstrating an independent well-

21   founded fear of future persecution, which “is a subjective

22   fear that is objectively reasonable.”       Dong Zhong Zheng v.


                                    6
1    Mukasey, 552 F.3d 277, 284 (2d Cir. 2009) (internal quotation

2    marks omitted).      “In the absence of solid support in the

3    record,” a fear of persecution is not well founded and “is

4    speculative at best.”    Jian Xing Huang v. U.S. INS, 421 F.3d

5    125, 129 (2d Cir. 2005).

6           The Government is correct that Xia does not meaningfully

7    challenge    the   agency’s    well-founded   fear   determination.

8    Although     she   generally    asserts   that   the       U.S.    State

9    Department’s International Religious Freedom Report for 2011

10   demonstrates that her fear of future persecution is well

11   founded, we cannot consider that report because it is not

12   part    of   the   administrative     record.        See    8     U.S.C.

13   § 1254(b)(4)(A) (providing that “the court of appeals shall

14   decide the petition only on the administrative record on which

15   the order of removal is based”).      She does not challenge the

16   agency’s finding that the same report for 2013, of which the

17   IJ took administrative notice, reflected local variation in

18   China’s treatment of underground Christians and no targeting

19   of underground church members in Xia’s home region.             See U.S.

20   State Dep’t 2013 Int’l Religious Freedom Report, at 1 (“In

21   some parts of the country, however, local authorities tacitly

22   approved of or did not interfere with the activities of


                                       7
1    unregistered                  groups.”),                   available               at

2    http://www.state.gov/documents/organization/222335.pdf.                           Xia

3    has therefore failed to demonstrate error in the agency’s

4    well-founded         fear    determination.          See    Jian    Hui    Shao    v.

5    Mukasey, 546 F.3d 138, 149-50, 165-66 (2d Cir. 2008) (holding

6    that    when     a    fear    of     persecution      is    claimed       based   on

7    enforcement of a policy that varies by region, it is the

8    applicant’s burden to show enforcement of the policy in her

9    home region).          Accordingly, because the agency reasonably

10   found     that       Xia    failed     to       demonstrate    an    objectively

11   reasonable fear of future persecution, it did not err in

12   denying asylum or in concluding that she necessarily failed

13   to meet the higher burdens for withholding of removal and CAT

14   relief. Y.C. v. Holder, 741 F.3d 324, 335 (2d Cir. 2013).

15          For the foregoing reasons, the petition for review is

16   DENIED.

17                                      FOR THE COURT:
18                                      Catherine O’Hagan Wolfe,
19                                      Clerk of Court




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