Xuedong Zhang v. Loretta E. Lynch ( 2016 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 2 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
XUEDONG ZHANG, No. 14-71723
Petitioner, Agency No. A088-286-501
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 26, 2016**
Before: McKEOWN, WARDLAW, and PAEZ, Circuit Judges.
Xuedong 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 protection under the Convention Against Torture (“CAT”). We have
*
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).
jurisdiction 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), and review de novo due process contentions, Sandoval-
Luna v. Mukasey, 526 F.3d 1243, 1246 (9th Cir. 2008). We deny the petition for
review.
Substantial evidence supports the agency’s adverse credibility determination
based on inconsistencies within Zhang’s testimony regarding the alleged beatings
he suffered at the hands of officials in 2001 and 2006. See id. at 1048 (adverse
credibility determination reasonable under the “totality of circumstances”). We
reject Zhang’s due process contention, as the IJ did not admit the asylum officer’s
notes as evidence or otherwise rely on those notes in reaching the adverse
credibility determination. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000)
(requiring error and prejudice to prevail on a due process claim). 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, substantial evidence also supports the agency’s denial of Zhang’s
CAT claim because it was based on the same testimony found not credible, and
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Zhang does not point to any other evidence establishing it is more likely than not
he would be tortured by or with the consent or acquiescence of the government if
returned to China. See Shrestha, 590 F.3d at 1048-49.
PETITION FOR REVIEW DENIED.
3 14-71723