Kai Xu v. Loretta E. Lynch ( 2016 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 1 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KAI XU, No. 14-73487
Petitioner, Agency No. A089-971-330
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 25, 2016**
Before: LEAVY, GRABER, and CHRISTEN, Circuit Judges.
Kai Xu, a native and citizen of China, petitions pro se 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
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
(“CAT”). 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 deny in part
and dismiss in part the petition for review.
Substantial evidence supports the agency’s adverse credibility determination
based on inconsistencies as to Xu’s employment in China and his reason for not
requiring medical treatment. See id. at 1048 (adverse credibility determination
supported under the totality of circumstances). Xu’s explanations to the agency do
not compel a contrary result. See Lata v. INS, 204 F.3d 1241, 1245 (9th Cir. 2000).
Xu’s contention that the agency did not consider evidence is not supported by the
record. In the absence of credible testimony, in this case, Xu’s asylum and
withholding of removal claims fail. See Farah v. Ashcroft, 348 F.3d 1153, 1156
(9th Cir. 2003).
Xu’s CAT claim also fails because it is based on the same testimony the
agency found not credible, and the record does not otherwise compel the
conclusion that it is more likely than not Xu would be tortured if returned to China.
See Shrestha, 590 F.3d at 1048-49.
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We do not reach Xu’s due process contentions regarding the IJ because he
did not raise them to the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.
2004).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
3 14-73487