12-1196

Xue v. Holder

BIA

Laforest, IJ

A087 446 589

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 Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 16th 4 day of September, two thousand thirteen.

5

6 PRESENT:

7 ROBERT D. SACK,

8 PETER W. HALL,

9 SUSAN L. CARNEY,

10 Circuit Judges.

11 _____________________________________

12

13 AIQIN XUE,

14 Petitioner, 

15

16 v. 12-1196

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES

19 ATTORNEY GENERAL,

20 Respondent.

21 _____________________________________

22

23 FOR PETITIONER: Zhong Yue Zhang, New York, N.Y.

24

25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant

26 Attorney General; Richard M. Evans,

27 Assistant Director; Jeffrey J.

28 Bernstein, Trial Attorney, Office of

29 Immigration Litigation, United

30 States Department of Justice,

31 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a

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

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

4 is DENIED.

5 Aiqin Xue, a native and citizen of the People’s

6 Republic of China, seeks review of a March 16, 2012,

7 decision of the BIA (1) affirming the July 14, 2010,

8 decision of Immigration Judge (“IJ”) Brigitte Laforest,

9 which denied her application for asylum and granted

10 withholding of removal; and (2) remanding the proceedings to

11 the IJ. In re Aiqin Xue, No. A087 446 589 (B.I.A. Mar. 16,

12 2012), aff’g No. A087 446 589 (Immig. Ct. N.Y. City July 14,

13 2010). We assume the parties’ familiarity with the

14 underlying facts and procedural history in this case.

15 Under the circumstances of this case, we have reviewed

16 the decision of the IJ as supplemented by the BIA. See Yan

17 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). Xue’s

18 premature petition for review has now ripened into a valid

19 petition for review. See Herrera-Molina v. Holder, 597 F.3d

20 128, 132 (2d Cir. 2010). We review the discretionary denial

21 of asylum for abuse of discretion. 8 U.S.C.

22 § 1252(b)(4)(D); Wu Zheng Huang v. INS, 436 F.3d 89, 96, 101

23 (2d Cir. 2006).

2
1 The agency’s decision to deny asylum as a matter of

2 discretion to someone who falls within the definition of

3 refugee requires an analysis of the “totality of the

4 circumstances,” in which adverse factors are balanced

5 against favorable ones. Wu Zheng Huang, 436 F.3d at 98. In

6 this case, the agency did not abuse its discretion. First,

7 the IJ’s adverse credibility determination as it relates to

8 Xue’s visa application and her testimony regarding that

9 application, is supported by substantial evidence. See Xiu

10 Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (per

11 curiam) (providing that adverse credibility determinations

12 are reviewed for substantial evidence). The IJ reasonably

13 based her adverse credibility determination on

14 inconsistencies between Xue’s testimony and her visa

15 applicant report. In her testimony, she stated that she did

16 not the tell the U.S. government that the purpose of her

17 visit was to see her daughter, who was studying in the U.S. 

18 The visa applicant report, in contrast, states that Xue

19 indicated she wanted to see her daughter, who was studying

20 in the U.S., and that Xue presented a letter from her

21 daughter discussing her studies. See 8 U.S.C.

22 § 1158(b)(1)(B)(iii) (identifying inconsistencies as a valid

3
1 basis for an adverse credibility determination). Moreover,

2 the IJ reasonably declined to credit Xue’s explanation for

3 the inconsistency: that a friend prepared her visa

4 application for her, she was not aware of its contents, and

5 she signed it without reading it. See Majidi v. Gonzales,

6 430 F.3d 77, 80-81 (2d Cir. 2005). Accordingly, given the

7 inconsistency, the totality of the circumstances supports

8 the agency’s conclusions that Xue was not credible in her

9 testimony regarding her visa application and that she

10 submitted a fraudulent visa application. See 8 U.S.C.

11 § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 167. 

12 The IJ then concluded that Xue did not merit a positive

13 exercise of discretion given her fraudulent visa application

14 and her incredible testimony with regard to that

15 application. Although the IJ did not weigh Xue’s positive

16 equities against these negative factors, upon de novo

17 review, the BIA, after affirming the IJ’s finding that Xue

18 engaged in “fraudulent conduct,” did consider both positive

19 and negative equities, and affirmed the discretionary denial

20 of asylum based on a totality of the circumstances. 

21 Because, as set forth below, the BIA sufficiently weighed

22 the equities and provided a reasoned explanation, we find no

4
1 abuse of discretion. See Wu Zheng Huang, 436 F.3d at 99; Ke

2 Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir.

3 2001). 

4 The BIA considered the positive factors — that absent a

5 grant of asylum, there was no reasonable way for Xue to

6 reunite with her family; Xue has no criminal or terrorist

7 history; and there was a danger she would be persecuted in

8 China. See Kong Min Jian v. INS, 28 F.3d 256, 259 (2d Cir.

9 1994); In re Kasinga, 21 I. & N. Dec. 357, 367 (BIA 1996);

10 In re H-, 21 I. & N. Dec. 337, 348 (BIA 1996). And the BIA

11 considered Xue’s fraudulent conduct in connection with her

12 visa application, which occurred when she was not fleeing

13 persecution, and her lack of credibility when testifying as

14 to the visa application. See Kong Min Jian, 28 F.3d at 259;

15 In re Chen, 20 I. & N. Dec. 16, 19 (BIA 1989). Xue’s

16 inability to reunite with her family in the United States

17 absent a grant of asylum is a serious consideration weighing

18 in favor of a positive exercise of discretion. The BIA did

19 not abuse its discretion, however, when it weighed the

20 positive factors against the negative factors and concluded

21 that a totality of the circumstances did not merit a

22 positive exercise of discretion, particularly given that due

23 to the grant of withholding of removal, Xue will not be

5
1 returned to China, and Xue did not suffer past persecution

2 in China. See Wu Zheng Huang, 436 F.3d at 99; Ke Zhen Zhao,

3 265 F.3d at 93.

4 For the foregoing reasons, the petition for review is

5 DENIED.

6 FOR THE COURT: 

7 Catherine O’Hagan Wolfe, Clerk

6