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.**  **At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 16 th** **day of September, two thousand thirteen.** 4 5 **PRESENT:** 6 **ROBERT D. SACK,** 7 **PETER W. HALL,** 8 **SUSAN L. CARNEY,** 9 Circuit Judges**.** 10

**_____________________________________** 11 12 **AIQIN XUE,** 13 Petitioner**,** 14 15 **v. 12-1196** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONER: Zhong Yue Zhang, New York, N.Y.** 23 24 **FOR RESPONDENT: Stuart F. Delery, Acting Assistant** 25 **Attorney General; Richard M. Evans,** 26 **Assistant Director; Jeffrey J.** 27 **Bernstein, Trial Attorney, Office of** 28 **Immigration Litigation, United** 29 **States Department of Justice,** 30 **Washington, D.C.** 31UPON DUE CONSIDERATION of this petition for review of a 1 Board of Immigration Appeals (“BIA”) decision, it is hereby 2 ORDERED, ADJUDGED, AND DECREED that the petition for review 3 is DENIED. 4 Aiqin Xue, a native and citizen of the People’s 5 Republic of China, seeks review of a March 16, 2012, 6 decision of the BIA (1) affirming the July 14, 2010, 7 decision of Immigration Judge (“IJ”) Brigitte Laforest, 8 which denied her application for asylum and granted 9 withholding of removal; and (2) remanding the proceedings to 10 the IJ. In re Aiqin Xue , No. A087 446 589 (B.I.A. Mar. 16, 11 2012),aff’gNo. A087 446 589 (Immig. Ct. N.Y. City July 14, 12 2010). We assume the parties’ familiarity with the 13 underlying facts and procedural history in this case. 14 Under the circumstances of this case, we have reviewed 15 the decision of the IJ as supplemented by the BIA. See Yan 16 Chen v. Gonzales , 417 F.3d 268, 271 (2d Cir. 2005). Xue’s 17 premature petition for review has now ripened into a valid 18 petition for review. See Herrera-Molina v. Holder, 597 F.3d 19 128, 132 (2d Cir. 2010). We review the discretionary denial 20 of asylum for abuse of discretion. 8 U.S.C. 21 § 1252(b)(4)(D);Wu Zheng Huang v. INS, 436 F.3d 89, 96, 101 22 (2d Cir. 2006). 23

2The agency’s decision to deny asylum as a matter of 1 discretion to someone who falls within the definition of 2 refugee requires an analysis of the “totality of the 3 circumstances,” in which adverse factors are balanced 4 against favorable ones. Wu Zheng Huang, 436 F.3d at 98. In 5 this case, the agency did not abuse its discretion. First, 6 the IJ’s adverse credibility determination as it relates to 7 Xue’s visa application and her testimony regarding that 8 application, is supported by substantial evidence. See Xiu 9 Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008) (per 10 curiam) (providing that adverse credibility determinations 11 are reviewed for substantial evidence). The IJ reasonably 12 based her adverse credibility determination on 13 inconsistencies between Xue’s testimony and her visa 14 applicant report. In her testimony, she stated that she did 15 not the tell the U.S. government that the purpose of her 16 visit was to see her daughter, who was studying in the U.S. 17 The visa applicant report, in contrast, states that Xue 18 indicated she wanted to see her daughter, who was studying 19 in the U.S., and that Xue presented a letter from her 20 daughter discussing her studies. See 8 U.S.C. 21 § 1158(b)(1)(B)(iii) (identifying inconsistencies as a valid 22

3basis for an adverse credibility determination). Moreover, 1 the IJ reasonably declined to credit Xue’s explanation for 2 the inconsistency: that a friend prepared her visa 3 application for her, she was not aware of its contents, and 4 she signed it without reading it. See Majidi v. Gonzales , 5 430 F.3d 77, 80-81 (2d Cir. 2005). Accordingly, given the 6 inconsistency, the totality of the circumstances supports 7 the agency’s conclusions that Xue was not credible in her 8 testimony regarding her visa application and that she 9 submitted a fraudulent visa application. See8 U.S.C. 10 § 1158(b)(1)(B)(iii); Xiu Xia Lin , 534 F.3d at 167. 11 The IJ then concluded that Xue did not merit a positive 12 exercise of discretion given her fraudulent visa application 13 and her incredible testimony with regard to that 14 application. Although the IJ did not weigh Xue’s positive 15 equities against these negative factors, upon de novo 16 review, the BIA, after affirming the IJ’s finding that Xue 17 engaged in “fraudulent conduct,” did consider both positive 18 and negative equities, and affirmed the discretionary denial 19 of asylum based on a totality of the circumstances. 20 Because, as set forth below, the BIA sufficiently weighed 21 the equities and provided a reasoned explanation, we find no 22

4abuse of discretion. See Wu Zheng Huang, 436 F.3d at 99; Ke 1 Zhen Zhao v. U.S. Dep’t of Justice , 265 F.3d 83, 93 (2d Cir. 2 2001). 3 The BIA considered the positive factors — that absent a 4 grant of asylum, there was no reasonable way for Xue to 5 reunite with her family; Xue has no criminal or terrorist 6 history; and there was a danger she would be persecuted in 7 China. See Kong Min Jian v. INS , 28 F.3d 256, 259 (2d Cir. 8 1994); In re Kasinga , 21 I. & N. Dec. 357, 367 (BIA 1996); 9

In re H- , 21 I. & N. Dec. 337, 348 (BIA 1996). And the BIA 10 considered Xue’s fraudulent conduct in connection with her 11 visa application, which occurred when she was not fleeing 12 persecution, and her lack of credibility when testifying as 13 to the visa application. See Kong Min Jian , 28 F.3d at 259; 14 In re Chen , 20 I. & N. Dec. 16, 19 (BIA 1989). Xue’s 15 inability to reunite with her family in the United States 16 absent a grant of asylum is a serious consideration weighing 17 in favor of a positive exercise of discretion. The BIA did 18 not abuse its discretion, however, when it weighed the 19 positive factors against the negative factors and concluded 20 that a totality of the circumstances did not merit a 21 positive exercise of discretion, particularly given that due 22 to the grant of withholding of removal, Xue will not be 23 5returned to China, and Xue did not suffer past persecution 1 in China. See Wu Zheng Huang, 436 F.3d at 99; Ke Zhen Zhao , 2 265 F.3d at 93. 3 For the foregoing reasons, the petition for review is 4

DENIED. 5
FOR THE COURT: 6 Catherine O’Hagan Wolfe, Clerk 7

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