Honge Liu v. Loretta E. Lynch ( 2016 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 4 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HONGE LIU, Nos. 13-72601
14-70395
Petitioner,
Agency No. A099-892-686
v.
LORETTA E. LYNCH, Attorney General, MEMORANDUM*
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 26, 2016**
Before: SHROEDER, CANBY, and CALLAHAN, Circuit Judges.
Honge Liu, a native and citizen of China, petitions for review of the Board
of Immigration Appeals (“BIA”) order dismissing her appeal from an immigration
judge’s decision denying her application for asylum, withholding of removal, and
protection under the Convention Against Torture (“CAT”) (No. 13-72601), and of
*
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).
the BIA’s denial of her motion to reconsider (No. 14-70395). Our jurisdiction is
governed by 8 U.S.C. § 1252. We review for substantial evidence the 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), we review for abuse of discretion the denial of a motion
to reopen or reconsider, Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir. 2002),
and we review de novo due process claims, Zetino v. Holder, 622 F.3d 1007, 1011
(9th Cir. 2010). We deny the petition for review in petition No. 13-72601, and we
deny in part and dismiss in part the petition for review in petition No. 14-70395.
As to petition No. 13-72601, substantial evidence supports the agency’s
adverse credibility determination based on Liu’s implausible testimony as to
documentation of police action with respect to the alleged abortion, and
inconsistencies in her testimony as to how she obtained a photograph for her son’s
notarial birth certificate. See Shrestha, 590 F.3d at 1048 (adverse credibility
determination was reasonable under the “totality of circumstances”). In the
absence of credible testimony, in this case, Liu’s asylum and withholding of
removal claims fail. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).
Substantial evidence also supports the agency’s denial of Liu’s CAT claim
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because it was based on the same evidence found not credible and the record does
not otherwise compel the finding that it is more likely than not Liu would be
tortured if returned to China. See Shrestha, 590 F.3d at 1048-49.
Finally, there was no error in the way the BIA reviewed the decision of the
IJ.
As to petition No. 14-70395, the BIA did not abuse its discretion in
construing Liu’s motion to reconsider as a second motion to reopen and denying it
as untimely and number-barred. See 8 C.F.R. § 1003.2(c)(2). We do not
consider new evidence that was not part of the record before the agency. See
Fisher v. INS, 79 F.3d 955, 963 (9th Cir. 1996) (en banc) (the court’s review is
limited to the administrative record).
We reject Liu’s contention that the BIA violated her due process rights in
denying her motion as untimely and number-barred. See Lata v. INS, 204 F.3d
1241, 1246 (9th Cir. 2000) (requiring error to prevail on a due process claim).
We lack jurisdiction to review the BIA’s decision not to invoke its sua
sponte authority to reopen removal proceedings. See Mejia-Hernandez v. Holder,
633 F.3d 818, 823-24 (9th Cir. 2011); cf. Bonilla v. Lynch, No. 12-73853, 2016
WL 3741866 (9th Cir. July 12, 2016).
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We further lack jurisdiction to review Liu’s challenge to the BIA’s
November 4, 2013, order denying her motion to reopen and remand, since she did
not timely file a petition for review of that order. See Stone v. INS, 514 U.S. 386,
405 (1995) (deadline for filing a petition for review from a final order of removal
is “mandatory and jurisdictional”).
No. 13-72601, PETITION FOR REVIEW DENIED;
No. 14-70395, PETITION FOR REVIEW DENIED in part;
DISMISSED in part.
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