### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-60607 Summary Calendar

XIAOJING WU,
Petitioner

v. ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL, Respondent

Petition for Review of an Order of the Board of Immigration Appeals BIA No. A088 792 610

Before BARKSDALE, CLEMENT, and GRAVES, Circuit Judges. PER CURIAM: * Xiaojing Wu, a native and citizen o f t h e People’s Republic of China, petitions for review of the Board of I mmigration Appeals’ (BIA) dismissing her appeal from the immigration judge’s (IJ) order denying her a pplicatio n f or asylum, withholding of removal, and relief und e r t h e Convention Against Torture (CAT). She contends: the IJ’s and BIA’ s a d v e r s e credibility determinations are invalid; the IJ violated her due-process rights by f a i l i ng to act as a neutral arbiter, given his expressions of impatience and hostility; and, U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D May29, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-60607 Document: 00512255528 Page: 1 Date Filed: 05/29/2013No. 12-60607

she has established a well-founded fear of future persecution, if she is returned to China, on the basis of her sincerely held Roman Catholic faith. An IJ’s credibility determination is r e v i ewed under a h ighly deferential standard, and must be upheld “unless, from the totality of the circumstances, it is plain that n o reasonable fact-finder could make s uch an adve r s e c redibility ruling”. Wang v. Holder , 5 69 F.3d 5 31, 53 8 (5th Cir. 2009) (citation and quotation marks omitted). The IJ “may rely on any inconsistency or o mission in

ma k i n g an adverse credibility determination as l ong as t h e totality of the circumstances establishes that an asylum a pplicant i s not c redible”. Id. (citation and internal quotation marks omitted) (emphasis in original). Wu asserts that the IJ improperly considered di screpancies based on the information ob tained at the time of her i llegal-entry d e tention by Border Patrol Agents during her o riginal I-21 3 s w o r n interview, despite her subsequent testimony indicating that the interview and supporting documentation were of
que s t i o n a b le validity. The IJ’s adverse credibility determination is supported by, i nter alia , inconsistencies among Wu’ s a s y lum application and supporting statement, the purportedly corroborating lett e r from Wu’s mother, a nd Wu’s testimony at th e merits hearings. See 8 U.S.C. § 1 1 5 8 (b ) ( 1)(B)(iii) (asylum applicant’s credibility m ay be d e t e r m i ned by, inter alia , consistency between applicant’s written and oral statements). The crux of Wu’s claims was that she had a well-founded fear of future persecution or torture based on her r eligious practices and inten d e d participation in future C a t h o l i c services. Along that line, she p rovided inconsistent statements r egarding the n umber o f b eatings she had suffered and her c hurch attendance following an O ctober 2007 confrontation with police; and, her m o ther’s l etter reflected that her m other was present during the October 2007 a lte r c a t i o n , b ut Wu testified she was home a lone at the time. Wu’s explanations for the inconsistencies d o not compel the conclusion that no

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reasonable t rier o f fact could have f ound her not credible. See Wang , 569 F.3d at 538. Wu contends the IJ failed to act a s a neutral arbiter, based on numerous examples of claimed hostile , i m p ati e nt , a n d i nti m i d ati n g c o m ments during seven evidentiary h e a r i n g s . Because s he did not r aise the majority of these claims before t he BIA, she failed to exhaust her administr a t i v e r e m e dies as to them; and, as a result, w e lack j urisdiction to review them. Omari v. Holder , 562 F.3d 314, 319 (5th C ir. 2 009). To the extent Wu preserved, i n the BIA, a c h allenge to the I J’s comments, they do not reflect a level of antagonism that would m ake fair judgment impossible. See Wang , 569 F.3d at 540-41, citing Liteky v. United S t ates , 510 U.S. 5 40, 555 (1994) (“judicial remarks during t he cour s e o f a [proceeding] that are critical or disapproving of, o r even hostile to, counsel, the parties, or their cases, o r dinarily do not support a bias o r impartiality challenge”). Accordingly, Wu fails to establish a due-process violation. In the light of the adverse credibility ruling and Wu’s failure to establish bias, the IJ and BIA had bases to deny Wu ’ s r e q u e s t s f or asylum, withholding

o f removal, o r CAT relief. Cf. Chun v. INS , 40 F.3d 76, 7 9 (5th C i r . 1 9 9 4 ) (“Without credible evidence, the BIA had no basis upon w hich to grant asylum or withhold deportation.”). DENIED.

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