Yu Zhang v. Eric H. Holder Jr. , 459 F. App'x 614 ( 2011 )

FILED
NOT FOR PUBLICATION NOV 22 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
YU PENG ZHANG, No. 08-75157
Petitioner, Agency No. A077-894-917
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 21, 2011 **
Before: TASHIMA, BERZON, and TALLMAN, Circuit Judges.
Yu Peng Zhang, 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”). Our jurisdiction is
*
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).
governed by 8 U.S.C. § 1252. We review for substantial evidence findings of fact,
including adverse credibility determinations. See Chebchoub v. INS, 257 F.3d
1038, 1042 (9th Cir. 2001). We dismiss in part and deny in part the petition for
review.
We lack jurisdiction to review Zhang’s contention that the IJ did not make
an adverse credibility determination, because he failed to exhaust that issue before
the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).
Substantial evidence supports the IJ’s adverse credibility determination
based upon the omission from Zhang’s asylum application of the beating he
endured during his detention. See Kin v. Holder, 595 F.3d 1050, 1056-57 (9th Cir.
2010). In the absence of credible testimony, Zhang’s asylum and withholding of
removal claims fail. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).
Finally, because Zhang’s CAT claim is based on the same testimony found
to be not credible, and Zhang does not point to any other evidence that shows it is
more likely than not he would be tortured if returned to China, his CAT claim also
fails. See id. at 1157.
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
2 08-75157