Xuejian Zhao v. Loretta E. Lynch , 633 F. App'x 450 ( 2016 )

FILED
NOT FOR PUBLICATION MAR 21 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
XUEJIAN ZHAO, No. 14-70051
Petitioner, Agency No. A089-778-533
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 15, 2016**
Before: GOODWIN, LEAVY, and CHRISTEN, Circuit Judges.
Xuejian Zhao, a native and citizen of China, petitions for review of the
Board of Immigration Appeals’ 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
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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
deny the petition for review.
Zhao does not challenge the agency’s dispositive finding that his asylum
application was untimely. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60
(9th Cir. 1996) (issues not specifically raised and argued in a party’s opening brief
are waived). Thus, we deny the petition as to Zhao’s asylum claim.
Substantial evidence supports the agency’s adverse credibility determination
based on inconsistencies between Zhao’s testimony and his wife’s letter as to when
they lost their apartment. See Shrestha, 590 F.3d at 1048 (adverse credibility
determination was reasonable under the REAL ID Act’s totality of the
circumstances standard). In the absence of credible testimony, Zhao’s
withholding of removal claim fails. See Farah v. Ashcroft, 348 F.3d 1153, 1156
(9th Cir. 2003).
Substantial evidence also supports the agency’s denial of Zhao’s CAT claim
because it is based on the same evidence found not credible and he does not point
to any other evidence that compels the finding that it is more likely than not that he
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would be tortured by or with the consent or acquiescence of the government if
returned to China. See Shrestha, 590 F.3d at 1048-49.
PETITION FOR REVIEW DENIED.
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