Yijin Xu v. Eric H. Holder Jr. , 446 F. App'x 879 ( 2011 )

FILED
NOT FOR PUBLICATION AUG 10 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
YIJIN XU, No. 08-73231
Petitioner, Agency No. A075-747-506
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 2, 2011 **
Before: LEAVY, IKUTA, and N.R. SMITH, Circuit Judges.
Yijin Xu, a native and citizen of China, petitions 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 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, Wang v. INS, 352 F.3d 1250,
1253 (9th Cir. 2003), and we deny the petition for review.
Substantial evidence supports the agency’s adverse credibility determination
based on Xu’s evasive, unresponsive testimony regarding why he left the
government-sanctioned church and differences between the government and
underground churches. See id. at 1256 (“An asylum seeker’s ‘obvious
evasiveness’ may be enough to uphold an IJ’s adverse credibility finding.”).
Substantial evidence also supports the agency’s adverse credibility finding because
Xu’s testimony initially omitted his first interaction with police and a fellow
church member’s arrest during a church gathering. See Li v. Ashcroft, 378 F.3d
959, 962-64 (9th Cir. 2004) (petitioner’s affirmative denial of any mistreatment in
airport interview went to the heart of the claim and supported an adverse credibility
finding). Absent credible testimony, Xu’s asylum and withholding of removal
claims fail. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).
Because Xu’s CAT claim is based on the same testimony found to be not
credible, and he does not point to any evidence that shows it is more likely than not
that he will be tortured if returned to China, his CAT claim also fails. See id. at
1156-57.
PETITION FOR REVIEW DENIED.
2 08-73231