Xiusheng Hu v. Eric Holder, Jr. , 713 F. App'x 563 ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 22 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
XIUSHENG HU, No. 13-72492
Petitioner, Agency No. A089-595-205
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 13, 2018**
Before: LEAVY, FERNANDEZ, and MURGUIA, Circuit Judges.
Xiusheng Hu, a native and citizen of China, petitions pro se for review of the
Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s decision denying his application for asylum, withholding of
removal, and relief under the Convention Against Torture (“CAT”). We have
jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the
*
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).
agency’s factual findings, applying the standards governing adverse credibility
determinations created by the REAL ID Act. Shrestha v. Holder, 590 F.3d 1034,
1039-40 (9th Cir. 2010). The agency’s determination that an applicant knowingly
made a frivolous application for asylum is reviewed de novo for compliance with
the procedural framework set forth by the BIA. Kulakchyan v. Holder, 730 F.3d
993, 995 & n.1 (9th Cir. 2013). We deny in part and grant in part the petition for
review, and we remand.
We do not consider the materials Hu references in his opening brief that are
not part of the administrative record. See Fisher v. INS, 79 F.3d 955, 963-64 (9th
Cir. 1996) (en banc).
Substantial evidence supports the agency’s determination that the harm Hu
suffered after being arrested by the police in 2007 did not rise to the level of
persecution. See Gu v. Gonzales, 454 F.3d 1014, 1020-21 (9th Cir. 2006) (finding
harm did not rise to the level of persecution where on one occasion petitioner was
detained for three days, beaten, and interrogated). As to his fear of future
persecution, substantial evidence supports the agency’s adverse credibility
determination. See Shrestha, 590 F.3d at 1048 (adverse credibility finding
reasonable under the totality of the circumstances). Hu filed his asylum application
in 2008, but testified that he first learned the police were looking for him in
January 2009. Hu’s explanations do not compel a contrary conclusion. See Lata v.
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INS, 204 F.3d 1241, 1245 (9th Cir. 2000). We reject Hu’s contention that the
agency erred by applying the adverse credibility determination to his claim based
on his 2007 police encounter. See Li v. Holder, 738 F.3d 1160, 1163 (9th Cir.
2013) (“The law of this circuit permits the use of the maxim falsus in uno, falsus in
omnibus in the immigration context.”). Substantial evidence also supports the
agency’s determination that Hu otherwise failed to establish a fear of future
persecution based on his religious practice in the United States. See Nagoulko v.
INS, 333 F.3d 1016, 1018 (9th Cir. 2003) (possibility of future persecution “too
speculative”). Thus, we deny the petition for review as to Hu’s asylum claim.
Because petitioner failed to establish eligibility for asylum, in this case, he
did not establish eligibility for withholding of removal. See Zehatye v. Gonzales,
453 F.3d 1182, 1190 (9th Cir. 2006).
Substantial evidence also supports the agency’s denial of CAT relief because
Hu failed to show it is more likely than not that he would be tortured by or with the
consent or acquiescence of the government of China. See Aden v. Holder, 589 F.3d
1040, 1047 (2009).
However, the record does not establish by a preponderance of the evidence
that Hu deliberately fabricated a material element of his asylum application. See
Khadka v. Holder, 618 F.3d 996, 1002 (9th Cir. 2010) (distinguishing between the
standards for adverse credibility determinations and the heightened standards for
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frivolous application findings). Thus, we grant the petition for review as to the
frivolousness finding, and remand this case for further proceedings consistent with
this disposition. See INS v. Ventura, 537 U.S. 12, 16-18 (2002) (per curiam).
Each party shall bear its own costs for this petition for review.
PETITION FOR REVIEW DENIED in part; GRANTED in part;
REMANDED.
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