Changxu Zhao v. Merrick Garland ( 2021 )

FILED
NOT FOR PUBLICATION
MAY 12 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHANGXU ZHAO, No. 14-72979
Petitioner, Agency No. A200-801-553
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 11, 2021**
San Francisco, California
Before: FERNANDEZ, SILVERMAN, and N.R. SMITH, Circuit Judges.
Changxu Zhao, native and citizen of the People’s Republic of China,
petitions for review of the decision of the Board of Immigration Appeals (“BIA”),
dismissing his appeal from an immigration judge’s (“IJ”) denial of his application
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
for asylum, withholding of removal, and relief under the Convention Against
Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252, and we deny the
petition for review.
1. After considering the totality of the circumstances and all relevant factors,
substantial evidence supports the IJ’s adverse credibility finding based on (A)
Zhoa’s demeanor, (B) inconsistencies in Zhoa’s testimony, and (C) Zhoa’s failure
to produce corroborating evidence. See Shrestha v. Holder, 590 F.3d 1034, 1039-
40 (9th Cir. 2010).
A. An IJ’s demeanor finding is entitled to “special deference.” See Kin v.
Holder, 595 F.3d 1050, 1056 (9th Cir. 2010). The IJ had the opportunity to
observe Zhao and noted (as outlined by the BIA) that Zhao “appeared to be
testifying from rote memorization, describing different incidents of purported
beatings as if each incident was exactly the same as the others, and without any
emotion.” This example is sufficient to support an adverse credibility finding. See
id.B. Zhao did not challenge the conclusion that he provided inconsistent
statements regarding why he obtained a passport. Rather, he argued that this
finding is not supported by substantial evidence, because it does not go to the
“heart of the claim.” However, credibility determinations under the REAL ID Act
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no longer need to go the heart of the claim. See 8 U.S.C. § 1158(b)(1)(B)(iii).
Thus, even if this inconsistency were minor, see, e.g., Enying Li v. Holder, 738
F.3d 1160, 1166 (9th Cir. 2013) (noting that “when and why [petitioner] applied
for a passport are central to determining whether she suffered religious
persecution”), Zhao’s argument lacks merit.
C. We lack jurisdiction to review Zhao’s arguments regarding his lack of
corroborative evidence. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir.
2004). As the BIA noted, Zhao failed to raise any challenge to the IJ’s finding that
Zhao did not provide corroborative evidence of his attendance at Christian
churches in the United States.
Based on the foregoing, the record does not compel the conclusion that the
adverse credibility finding was in error. Accordingly, in the absence of credible
evidence, Zhao has failed to show eligibility for asylum or withholding. See Farah
v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).
2. Substantial evidence supports the BIA’s determination that Zhao
failed to establish eligibility for CAT relief. Because Zhao’s CAT claim is based
on the same testimony that the IJ found to be not credible, it fails as well. See
Almaghzar v. Gonzales, 457 F.3d 915, 922-23 (9th Cir. 2006). Zhao points to no
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other record evidence that the IJ or the BIA should have considered to support his
CAT claim. See Farah, 348 F.3d at 1157.
PETITION FOR REVIEW DENIED.
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