Feng Zhao v. Eric H. Holder Jr. , 473 F. App'x 655 ( 2012 )

FILED
NOT FOR PUBLICATION MAY 23 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
FENG ZHAO, No. 08-74176
Petitioner, Agency No. A096-497-434
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 15, 2012 **
Before: CANBY, GRABER, and M. SMITH, Circuit Judges.
Feng Zhao, a native and citizen of China, petitions for review of the
Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s decision denying his applications for asylum, withholding of
removal, relief under the Convention Against Torture (“CAT”), a waiver 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. § 1182(i) (“section 212(i) waiver”), and adjustment of status. Our
jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence
the agency’s findings of fact, including adverse credibility determinations.
Zamanov v. Holder, 649 F.3d 969, 973 (9th Cir. 2011). We deny in part and
dismiss in part the petition for review.
Substantial evidence supports the agency’s adverse credibility determination
on the basis of the omission from Zhao’s asylum application and testimony to an
asylum officer that four police officers held him down and forcibly removed his
Falun Gong tattoo while he was in custody. See id. (“Material alterations in the
applicant’s account of persecution are sufficient to support an adverse credibility
finding.”). The agency reasonably rejected Zhao’s explanation for the omission.
See Rivera v. Mukasey, 508 F.3d 1271, 1275 (9th Cir. 2007). In the absence of
credible testimony, Zhao’s asylum and withholding of removal claims fail. See
Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).
Because Zhao’s CAT claim is made on the basis of the same testimony the
agency found not credible, and Zhao does not point to any other evidence that
would compel a finding that it is more likely than not he would be tortured if
returned to China, his CAT claim also fails. See id. at 1157.
We lack jurisdiction to review the agency’s denial of Zhao’s section 212(i)
2 08-74176
waiver. See 8 U.S.C. § 1182(i)(2); Corona-Mendez v. Holder, 593 F.3d 1143,
1146 (9th Cir. 2010). Further, we lack jurisdiction to consider Zhao’s unexhausted
contention that it was not necessary for him to seek a section 212(i) waiver. See
Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
3 08-74176