Xi Jiang v. Loretta E. Lynch ( 2015 )

FILED
NOT FOR PUBLICATION JUL 08 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
XI JIANG, No. 12-72466
Petitioner, Agency No. A088-293-673
v.
MEMORANDUM*
LORETTA E. LYNCH,** Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 6, 2015***
San Francisco, California
Before: TALLMAN, M. SMITH, and MURGUIA, Circuit Judges.
Xi Jiang (“Petitioner”), a native and citizen of China, petitions for review of a
decision by the Board of Immigration Appeals (“BIA”) affirming an Immigration
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** Loretta E. Lynch is substituted for Eric H. Holder, Jr. as Attorney
General. Fed. R. App. P. 43(c)(2).
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Judge’s (“IJ”) denial of his applications for asylum, withholding of removal, and
protection under the Convention Against Torture (“CAT”). We have jurisdiction
under 8 U.S.C. § 1252(a) to review this REAL ID Act petition, and we deny the
petition for review.
“Factual findings by the BIA are conclusive if supported by reasonable,
substantial, and probative evidence on the record considered as a whole. . . . Where,
as here, the BIA has reviewed the IJ’s decision and incorporated portions of it as its
own, we treat the incorporated parts of the IJ’s decision as the BIA’s.”
Molina-Estrada v. INS, 293 F.3d 1089, 1093 (9th Cir. 2002) (quotation omitted).
Both the BIA and the IJ provided specific and cogent reasons, supported by
substantial evidence, for Petitioner’s adverse credibility determination where: (1)
Petitioner’s testimony regarding his alleged beating by the police was internally
inconsistent and inconsistent with his written statement, see Rizk v. Holder, 629 F.3d
1083, 1088, 1091 (9th Cir. 2011); (2) Petitioner’s ability to depart China with no
issues—by using his own passport—belied his claim that the police are searching
zealously for him and would arrest him upon return to the Beijing airport, see
Khourassany v. INS, 208 F.3d 1096, 1101 (9th Cir. 2000); and (3) Petitioner was
vague and evasive in his responses with respect to the police abuse central to his
claims, see Wang v. INS, 352 F.3d 1250, 1256-57 (9th Cir. 2003). Petitioner’s
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implausible testimony concerning his departure from China, including his claim that
he accessed an airplane through a tunnel, further supports the IJ’s adverse credibility
determination. Cf. Don v. Gonzales, 476 F.3d 738, 743 (9th Cir. 2007).
Although the IJ gave Petitioner the opportunity to explain the inconsistencies
in his testimony when they arose, Petitioner failed to provide sufficient clarification.
Additionally, none of the letters from friends and family offered by Petitioner
provided corroborating evidence of his allegations of past persecution by the Chinese
police. Cf. 8 U.S.C. § 1158(b)(1)(B)(ii) (“Where the trier of fact determines that the
applicant should provide evidence that corroborates otherwise credible testimony,
such evidence must be provided unless the applicant does not have the evidence and
cannot reasonably obtain the evidence.”); Aden v. Holder, 589 F.3d 1040, 1044 (9th
Cir. 2009) (citing same).
Because substantial evidence supports the agency’s adverse credibility finding,
Molina-Estrada, 293 F.3d at 1093, Petitioner fails to establish either past persecution
or a well-founded fear of future persecution. See Zamanov v. Holder, 649 F.3d 969,
973-74 (9th Cir. 2011). Consequently, Petitioner necessarily cannot meet the “higher
burden of proof” required for withholding of removal. Lata v. INS, 204 F.3d 1241,
1244 (9th Cir. 2000). Finally, Petitioner’s claim for protection under CAT rests on
the same factual allegations the IJ and BIA found not credible, and there was no error
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in rejecting this claim as well. See Farah v. Ashcroft, 348 F.3d 1153, 1156-57 (9th
Cir. 2003).
PETITION DENIED.
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