Dejun Kong v. Loretta E. Lynch , 643 F. App'x 640 ( 2016 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 22 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DEJUN KONG, Nos. 12-71351
14-71359
Petitioner,
Agency No. A089-982-658
v.
LORETTA E. LYNCH, Attorney General, MEMORANDUM*
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 15, 2016**
Before: GOODWIN, LEAVY, and CHRISTEN, Circuit Judges.
Dejun Kong, 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 (“IJ”) decision denying his application for asylum, withholding of removal,
and protection under the Convention Against Torture, (“CAT”) (petition No.
*
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).
12-71351), and of the BIA’s subsequent denial of his motion to reopen removal
proceedings (petition No. 14-71359). Our jurisdiction is governed by 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), and we
review for abuse of discretion the denial of a motion to reopen, Iturribarria v. INS,
321 F.3d 889, 894 (9th Cir. 2003). We dismiss in part and deny in part the
petition for review in No. 12-71351, and we deny the petition for review in
No. 14-71359.
As to petition No. 12-71351, we lack jurisdiction to consider Kong’s
contentions concerning interpretation issues and the IJ’s leading questions because
he failed to exhaust these issues before the BIA. See Barron v. Ashcroft, 358 F.3d
674, 678 (9th Cir. 2004) (court lacks jurisdiction to review claims not presented to
the agency).
The agency found Kong not credible based in part on inconsistencies
between Kong’s testimony and application statement concerning the year he was
allegedly laid off and the reasons the layoffs occurred. Substantial evidence
supports the agency’s adverse credibility finding based on these inconsistencies.
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See Shrestha, 590 F.3d at 1048 (adverse credibility finding reasonable under the
totality of the circumstances). In the absence of credible testimony, Kong’s
asylum and withholding of removal claims fail. See Farah v. Ashcroft, 348 F.3d
1153, 1156 (9th Cir. 2003).
Kong’s CAT claim fails because it is based on the same testimony the
agency found not credible, and he 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 a public official in China. See
id. at 1156-57.
As to petition No. 14-71359, the BIA did not abuse its discretion in denying
Kong’s motion to reopen where it was filed nearly two years after the BIA’s final
decision, see 8 C.F.R. 1003.2(c)(2), and Kong failed to establish the due diligence
required for equitable tolling of the filing deadline, see Singh v. Gonzales, 491 F.3d
1090, 1096-97 (9th Cir. 2007) (equitable tolling is available to an alien who is
prevented from timely filing a motion to reopen due to deception, fraud, or error,
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as long as petitioner exercises due diligence in discovering such circumstances.)
Thus, we deny the petition for review in No. 14-71359.
No. 12-71351: PETITION FOR REVIEW DISMISSED in part,
DENIED part;
No. 14-71359: PETITION FOR REVIEW DENIED.
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