Weidong Xia v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 14 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WEIDONG XIA, No. 16-72173
Petitioner, Agency No. A087-727-657
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 10, 2022**
Pasadena, California
Before: IKUTA, LEE, and FORREST, Circuit Judges.
Petitioner Weidong Xia, a native and citizen of China, petitions for review of
the Board of Immigration Appeals’ (BIA) decision affirming the Immigration
Judge’s (IJ) adverse credibility determination and denial of his applications for
asylum, withholding of removal, and relief 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). We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition in part
and dismiss in part.
“We review factual findings, including adverse credibility determinations, for
substantial evidence.” Iman v. Barr, 972 F.3d 1058, 1064 (9th Cir. 2020). Under this
standard, factual findings are “conclusive unless any reasonable adjudicator would
be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).
Substantial evidence supports the BIA’s adverse credibility determination.
For example, Xia represented in his asylum application, which he signed after being
warned multiple times he was doing so under penalty of perjury, that he had resided
in Monterey Park, California since 2009. When the IJ instructed him at his hearing
in 2015 to review his application and update it with any changes, he did not list any
other residences and added in his employment history section only that he did
“massage work” in the greater Los Angeles area from 2009 to 2015. However, at his
hearing Xia admitted that during the relevant period he had lived and worked in
Iowa, Illinois, Indiana, Minnesota, and Northern California for extended amounts of
time.
Xia asserts that there is no discrepancy in his statements because he “never
actually moved his residence from Monterey Park” and he kept his mailing address
at that location. This assertion does not compel reversing the BIA’s adverse
credibility determination. Inconsistencies concerning his residence and work history
2
are sufficient to find Xia not credible under the totality of the circumstances. See Jin
v. Holder, 748 F.3d 959, 966 (9th Cir. 2014) (“[M]isrepresentations of residence are
relevant to [a petitioner’s] credibility because they show . . . his dishonesty with the
immigration court.”). And we find no error in the BIA’s rejection of Xia’s
explanation for his inconsistencies, particularly where he admitted that he spent “not
that long” in California between 2009 and 2015; he spent “over a year” in Indiana;
he worked in Chicago in 2011, 2012, and 2013 and got a work authorization in
Illinois listing an address in that state; and spent periods of many months in
numerous other locations.
Because we conclude that the BIA did not err in finding Xia not credible, and
without his testimony, the record does not establish his eligibility for asylum, we
need not consider whether Xia qualifies for an exception to the one-year filing
requirement for asylum or whether he established that he suffered past persecution.
Additionally, because Xia failed to exhaust his withholding of removal and CAT
claims below,1 we lack jurisdiction to consider these claims to the extent they are
raised on appeal. See Camposeco-Montejo v. Ashcroft, 384 F.3d 814, 821 (9th Cir.
2004); 8 C.F.R. 1003.3(b).
PETITION FOR REVIEW DENIED IN PART; DISMISSED IN PART.
1
The BIA held that Xia waived his withholding of removal and CAT claims
by failing to “meaningfully challenge” their denial. Xia does not challenge this
holding on appeal.
3