IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 of the People’s Republic of China,

petitions for review of the Board of Immigration Appeals’ (BIA) dismissing her

appeal from the immigration judge’s (IJ) order denying her application for

asylum, withholding of removal, and relief under the Convention Against

Torture (CAT). She contends: the IJ’s and BIA’s adverse credibility

determinations are invalid; the IJ violated her due-process rights by failing to

act as a neutral arbiter, given his expressions of impatience and hostility; and,

United States Court of Appeals

Fifth Circuit

F I L E D

May 29, 2013

Lyle W. Cayce

Clerk

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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No. 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 reviewed under a highly deferential

standard, and must be upheld “unless, from the totality of the circumstances, it

is plain that no reasonable fact-finder could make such an adverse credibility

ruling”. Wang v. Holder, 569 F.3d 531, 538 (5th Cir. 2009) (citation and

quotation marks omitted). The IJ “may rely on any inconsistency or omission in

making an adverse credibility determination as long as the totality of the

circumstances establishes that an asylum applicant is not credible”. Id. (citation

and internal quotation marks omitted) (emphasis in original).

Wu asserts that the IJ improperly considered discrepancies based on the

information obtained at the time of her illegal-entry detention by Border Patrol

Agents during her original I-213 sworn interview, despite her subsequent

testimony indicating that the interview and supporting documentation were of

questionable validity. The IJ’s adverse credibility determination is supported

by, inter alia, inconsistencies among Wu’s asylum application and supporting

statement, the purportedly corroborating letter from Wu’s mother, and Wu’s

testimony at the merits hearings. See 8 U.S.C. § 1158(b)(1)(B)(iii) (asylum

applicant’s credibility may be determined 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 religious practices and intended

participation in future Catholic services. Along that line, she provided

inconsistent statements regarding the number of beatings she had suffered and

her church attendance following an October 2007 confrontation with police; and,

her mother’s letter reflected that her mother was present during the October

2007 altercation, but Wu testified she was home alone at the time. Wu’s

explanations for the inconsistencies do not compel the conclusion that no

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reasonable trier of fact could have found her not credible. See Wang, 569 F.3d

at 538. 

Wu contends the IJ failed to act as a neutral arbiter, based on numerous

examples of claimed hostile,impatient, and intimidating comments during seven

evidentiary hearings. Because she did not raise the majority of these claims

before the BIA, she failed to exhaust her administrative remedies as to them;

and, as a result, we lack jurisdiction to review them. Omari v. Holder, 562 F.3d

314, 319 (5th Cir. 2009). To the extent Wu preserved, in the BIA, a challenge to

the IJ’s comments, they do not reflect a level of antagonism that would make fair

judgment impossible. See Wang, 569 F.3d at 540-41, citing Liteky v. United

States, 510 U.S. 540, 555 (1994) (“judicial remarks during the course of a

[proceeding] that are critical or disapproving of, or even hostile to, counsel, the

parties, or their cases, ordinarily do not support a bias or 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 requests for asylum, withholding

of removal, or CAT relief. Cf. Chun v. INS, 40 F.3d 76, 79 (5th Cir. 1994)

(“Without credible evidence, the BIA had no basis upon which to grant asylum

or withhold deportation.”).

DENIED.

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