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,

(2d Cir. 2005). The

26 applicable standards of review are well established. See

2 1

(b)(4)(B); Xiu Xia Lin v. Mukasey,

(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

(b)(1)(B)(iii); Xiu Xia Lin,

-

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,

.

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,

(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

(2d Cir. 2008) (discussing waiver of

12 credibility findings); Biao Yang v. Gonzales,

,

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,

,

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

(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

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

16 Justice,

(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,

. 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,

(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,

(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,

(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,

(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

8