Feng Gu v. Matthew Whitaker ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 19 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FENG GU, No. 18-70201
Petitioner, Agency No. A201-040-756
v.
MEMORANDUM*
MATTHEW G. WHITAKER, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 17, 2018**
Before: WALLACE, SILVERMAN, and McKEOWN, Circuit Judges.
Feng Gu, a native and citizen of China, petitions pro se for review of the
Board of Immigration Appeals’ order dismissing his appeal from an immigration
judge’s (“IJ”) decision denying his application for asylum, withholding of removal,
and relief under the Convention Against Torture (“CAT”). We have jurisdiction
*
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).
under 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 continuance, Sandoval-
Luna v. Mukasey, 526 F.3d 1243, 1246 (9th Cir. 2008), and a motion to remand,
Romero-Ruiz v. Mukasey, 538 F.3d 1057, 1062 (9th Cir. 2008). We deny the
petition for review.
Substantial evidence supports the agency’s adverse credibility determination
based on inconsistencies between Gu’s testimony and documentary evidence as to
and the timing of and motivation for Gu’s decision to come to the United States,
the date Gu’s father died, and Gu’s address in China, See Shrestha, 590 F.3d at
1048 (adverse credibility determination reasonable under “the totality of
circumstances”). Gu’s explanations do not compel a contrary conclusion. See
Lata v. INS, 204 F.3d 1241, 1245 (9th Cir. 2000). Substantial evidence also
supports the agency’s additional determination that Gu failed to establish an
objectively reasonable fear of future persecution. See Halim v. Holder, 590 F.3d
971, 977 (9th Cir. 2009) (petitioner “failed to make a compelling showing of the
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requisite objective component of a well-founded fear of persecution”). Thus, Gu’s
asylum claim fails.
In this case because Gu failed to establish eligibility for asylum, he failed to
establish eligibility for withholding of removal. See Zehatye v. Gonzales, 453 F.3d
1182, 1190 (9th Cir. 2006); see also Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th
Cir. 2003).
Gu’s CAT claim also fails because it is based on the same testimony the
agency found not credible, and Gu does not point to any other evidence in the
record that compels the conclusion that it is more likely than not he would be
tortured by or with the consent or acquiescence of the government in China. See
Farah, 348 F.3d at 1156-57.
The IJ did not abuse his discretion by denying Gu’s request for a
continuance. See 8 C.F.R. § 1003.29 (an IJ may grant a continuance for good
cause shown); Sandoval–Luna, 526 F.3d at 1247 (“The decision to grant or deny a
continuance is in the sound discretion of the judge and will not be overturned
except on a showing of clear abuse.” (citation and quotation marks omitted)).
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Finally, the BIA did not abuse its discretion in denying Gu’s motion to
remand. Cf. Romero-Ruiz, 538 F.3d at 1061 (“The BIA abuses its discretion if its
decision is ‘arbitrary, irrational, or contrary to law.’” (citation omitted).
PETITION FOR REVIEW DENIED.
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