         11-4457
         Xu v. Holder
                                                                                       BIA
                                                                                Vomacka, IJ
                                                                               A089 222 798


                          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 6th day of August, two thousand twelve.
 5
 6       PRESENT:
 7                      JOSEPH M. MCLAUGHLIN,
 8                      DEBRA ANN LIVINGSTON,
 9                      RAYMOND J. LOHIER, JR.,
10                           Circuit Judges.
11
12
13       XIANG HUA XU,
14
15                      Petitioner,
16
17                      v.                                      11-4457
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22
23
24       FOR PETITIONER:               Thomas V. Massucci, New York, New
25                                     York.
26
27       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
28                                     Attorney General; Richard M. Evans,
29                                     Assistant Director, Kevin J. Conway,
 1                             Trial Attorney, Office of
 2                             Immigration Litigation, Civil
 3                             Division, United States Department
 4                             of Justice, 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       Xiang Hua Xu, a native and citizen of the People’s

11   Republic of China, seeks review of an October 5, 2011, order

12   of the BIA, affirming the November 4, 2009, decision of an

13   Immigration Judge (“IJ”) which denied her application for

14   asylum, withholding of removal, and relief under the

15   Convention Against Torture (“CAT”).     In re Xiang Hua Xu, No.

16   A089 222 798 (B.I.A. Oct. 5, 2011), aff’g No. A089 222 798

17   (Immig. Ct. N.Y. City Nov. 4, 2009).     We assume the parties’

18   familiarity with the underlying facts and procedural history

19   in this case.

20       We have reviewed both the BIA’s and IJ’s opinions in

21   this case.     Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d

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

23   established.     See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.

24   Holder, 562 F.3d 510, 513 (2d Cir. 2009).

25


                                     2
 1        For asylum applications governed by the REAL ID Act,

 2   such as this one, the agency may, considering the totality

 3   of the circumstances, base a credibility finding on an

 4   asylum applicant’s demeanor, the plausibility of her

 5   account, and inconsistencies in her statements, without

 6   regard to whether they go “to the heart of the applicant’s

 7   claim.”     8 U.S.C. § 1158(b)(1)(B)(iii).

 8   I.   Past Persecution - Adverse Credibility Determination

 9        Substantial evidence supports the agency’s conclusion

10   that Xu did not testify credibly regarding her claim that

11   she suffered past persecution in China on account of her

12   Christian faith and participation in house church

13   activities.     In finding Xu not credible, the agency

14   reasonably relied on Xu’s failure to provide a consistent

15   account of the year in which she was arrested and detained

16   in China.     See Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d

17   Cir. 2008) (per curiam).     The IJ was not required to

18   specifically request an explanation for these

19   inconsistencies, as they were not minor.     See Ming Shi Xue

20   v. BIA, 439 F.3d 111, 122 n.13 (2d Cir. 2006).     Moreover,

21   the agency reasonably relied on discrepancies between Xu’s

22   testimony and asylum interview with respect to whether she


                                     3
 1   had applied for a U.S. visa prior to her arrival in March

 2   2008, and between Xu’s testimony and medical certificate

 3   with respect to the time of day that Xu had arrived at the

 4   hospital seeking treatment for injuries she allegedly

 5   sustained while in detention.       See Xiu Xia Lin, 534 F.3d at

 6   167.    A reasonable factfinder would not have been compelled

 7   to credit Xu’s explanation for these inconsistencies.

 8   See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir. 2005).

 9          Additionally, the agency reasonably determined that

10   Xu’s credibility was undermined by her admission that she

11   had lied to U.S. consulate officials in Honduras about her

12   finances in order to procure a U.S. entry visa.       When

13   considered under the totality of the circumstances, the

14   misrepresentation casts further doubt on Xu’s veracity.       See

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

16          The agency also did not err in finding that the

17   evidence Xu submitted was insufficient to rehabilitate her

18   otherwise incredible testimony.       See Biao Yang v. Gonzales,

19   496 F.3d 268, 273 (2d Cir. 2007) (per curiam).

20   Specifically, the agency was not required to credit letters

21   from Xu’s husband, parents, and friend in China.       See Xiao

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


                                     4
 1   2006) (finding that the weight afforded to the applicant’s

 2   evidence in immigration proceedings lies largely within the

 3   discretion of the agency).   Furthermore, the agency’s

 4   determination that Xu’s remaining evidence was of little

 5   probative value is entitled to deference, given that the

 6   evidence was unauthenticated and Xu’s credibility already

 7   had been called into question.   See Qin Wen Zheng v.

 8   Gonzales, 500 F.3d 143, 149 (2d Cir.2007); see also Xiao Ji

 9   Chen, 471 F.3d at 342.

10   II. Well-Founded Fear of Future Persecution - Burden of
11       Proof
12
13       Because the agency reasonably concluded that Xu did not

14   establish past persecution, she is not entitled to a

15   presumption of future persecution.   See 8 C.F.R.

16   § 1208.13(b)(1).   The IJ also reasonably found that Xu

17   failed to demonstrate a well-founded fear of future

18   persecution based on a   pattern or practice of persecution

19   of members of house churches in China.   See

20   8 C.F.R. § 1208.13(b)(2)(iii).   Indeed, the IJ– referencing

21   the 2008 U.S. Department of State International Religious

22   Freedom Report in the record– reasonably found that although

23   the report indicated that the Chinese government has

24   targeted Christian house church groups, it also indicated
                                   5
 1   that the degree of interference and harassment often varied

 2   depending on the house church group’s size and the region in

 3   which it was located, and, therefore, did not establish that

 4   the government’s repression of house church groups is so

 5   coordinated and widespread as to negatively affect the

 6   millions of Christians who engage in unsanctioned religious

 7   worship.   See Mufied v. Mukasey, 508 F.3d 88, 92 (2d Cir.

 8   2007); see also Siewe v. Gonzales, 480 F.3d 160, 167 (2d

 9   Cir. 2007) (“[W]here there are two permissible views of the

10   evidence, the fact finder’s choice between them cannot be

11   clearly erroneous.” (internal quotation marks omitted)).

12       Moreover, the IJ reasonably found that Xu failed to

13   establish a pattern or practice of persecution of Christians

14   similarly situated to her, as the background evidence

15   predominantly reflected ongoing harassment of church

16   leaders, pastoral officials, and bishops, and not laypersons

17   such as Xu.   See 8 C.F.R. § 1208.13(b)(2)(iii).   Finally, in

18   the absence of any record evidence showing that the Chinese

19   government was aware or likely to become aware that Xu

20   practiced Christianity in the United States, Xu did not meet

21   her burden of showing an objectively reasonable fear of

22   future persecution.   See Hongsheng Leng v. Mukasey, 528 F.3d

23   135, 143 (2d Cir. 2008) (per curiam).
                                   6
 1       Xu was similarly unable to meet the higher burdens for

 2   withholding of removal and CAT relief, as those claims were

 3   based on the same facts and evidence.    See Paul v. Gonzales,

 4   444 F.3d 148, 156 (2d Cir. 2006).

 5       For the foregoing reasons, the petition for review is

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

 7   removal that the Court previously granted in this petition

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

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

10   oral argument in this petition is DENIED in accordance with

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

12   Circuit Local Rule 34.1(b).

13                                 FOR THE COURT:
14                                 Catherine O’Hagan Wolfe, Clerk
15




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