Hai He v. Merrick Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 17 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HAI QING HE, No. 20-70455
Petitioner, Agency No. A209-431-920
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 14, 2023**
Before: SILVERMAN, SUNG, and SANCHEZ, Circuit Judges.
Hai Qing He, 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 applications for asylum and
withholding of removal. Our jurisdiction is governed by 8 U.S.C. § 1252. We
*
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).
review for substantial evidence the agency’s factual findings, applying the
standards governing adverse credibility determinations under 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.
Substantial evidence supports the agency’s adverse credibility determination
based on He’s admission of visa fraud, an inconsistency and implausibility
regarding his occupation and business-ownership, and his nonresponsive testimony
regarding his own religious practices. See id. at 1048 (adverse credibility finding
reasonable under the totality of the circumstances); see also Li v. Garland, 13 F.4th
954, 961 (9th Cir. 2021) (false information on visa application was an appropriate
factor to consider in the adverse credibility determination). He’s explanations do
not compel a contrary conclusion. See Li, 13 F.4th at 961 (IJ not compelled to
accept explanations for discrepancies). Substantial evidence also supports the
agency’s determination that He did not present documentary evidence that would
otherwise establish his eligibility for relief. See Garcia v. Holder, 749 F.3d 785,
791 (9th Cir. 2014) (applicant’s documentary evidence was insufficient to
rehabilitate his testimony or independently support his claim). Thus, in the
absence of credible testimony, He’s asylum and withholding of removal claims
fail. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).
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We do not address He’s remaining contentions regarding the merits of his
claims because the BIA did not deny relief on these grounds. See Santiago-
Rodriguez v. Holder, 657 F.3d 820, 829 (9th Cir. 2011) (“In reviewing the decision
of the BIA, we consider only the grounds relied upon by that agency.” (citation and
internal quotation marks omitted)).
We lack jurisdiction to consider He’s contentions as to protection under the
Convention Against Torture because he did not raise them to the agency. See
Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks jurisdiction
to review claims not presented below).
We do not consider the materials He references in his opening brief that are
not part of the administrative record. See Fisher v. INS, 79 F.3d 955, 963-64 (9th
Cir. 1996) (en banc).
The temporary stay of removal remains in place until the mandate issues.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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