Yicai Bao v. Loretta E. Lynch ( 2016 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 2 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
YICAI BAO, No. 13-74074
Petitioner, Agency No. A201-187-757
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.
Yicai Bao, 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 decision denying his application for asylum and withholding of removal.
Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial
*
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).
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). We deny in part and dismiss in part the
petition for review.
The record does not compel the conclusion that Bao filed his asylum
application within a reasonable period of time after any extraordinary
circumstances that might excuse his untimely asylum application. See 8 C.F.R.
§ 208.4(a)(5); see Husyev v. Mukasey, 528 F.3d 1172, 1181 (9th Cir. 2008). Thus,
we deny the petition for review as to Bao’s asylum claim.
Substantial evidence supports the agency’s adverse credibility determination
based on inconsistencies as to the number of abortions Bao’s wife was forced to
undergo. See Shrestha, 590 F.3d at 1048 (9th Cir. 2010) (adverse credibility
finding reasonable under the totality of the circumstances). Bao’s explanations do
not compel a contrary conclusion. See Lata v. INS, 204 F.3d 1241, 1245 (9th Cir.
2000). We lack jurisdiction to consider the reliability of the asylum officer’s notes,
because Bao failed to raise that contention before the BIA. See Arsdi v. Holder,
659 F.3d 925, 928-30 (9th Cir. 2011). In the absence of credible testimony, in this
case, Bao’s withholding of removal claim fails. See Farah v. Ashcroft, 348 F.3d
2 13-74074
1153, 1156 (9th Cir. 2003).
Bao’s motion to stay removal is denied.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
3 13-74074