Xinguang Li v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION APR 21 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
XINGUANG LI, No. 10-72296
Petitioner, Agency No. A089-685-547
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 8, 2014
San Francisco, California
Before: SILVERMAN, W. FLETCHER, and BYBEE, Circuit Judges.
Petitioner Xinguang Li seeks review of the order of the Board of
Immigration Appeals (“BIA”) affirming the immigration judge’s (“IJ”) denial of
asylum and withholding of removal under the Convention Against Torture
(“CAT”). Substantial evidence supports the agency’s adverse credibility finding;
we therefore deny the petition.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
The IJ identified two bases for her adverse credibility finding: first,
petitioner’s uncorroborated work history; and second, inconsistencies about
medical care petitioner claimed to have received. With respect to the work history,
petitioner’s testimony at the hearing as to the dates of his employment with Alpine
Electronics was inconsistent with information in his declaration; in addition,
petitioner had no evidence to corroborate his employment there other than an
Alpine t-shirt. Petitioner also failed to submit evidence supporting his work
history at US Mac. As for the claims about medical care, the IJ found that
petitioner had not presented credible testimony about his injuries and visit to the
hospital, based on a two-day gap between petitioner’s alleged visit to the hospital
and the date on the medical report, as well as the fact that petitioner had not
mentioned visiting the hospital in his declaration.
The BIA agreed with the IJ’s adverse credibility determination and affirmed
the denial of asylum, stating that petitioner’s explanations for the discrepancies the
IJ identified were not reasonable. Substantial evidence supports that conclusion.
Petitioner argues that he submitted the medical report with his application, but that
he simply forgot to mention the hospital visit in his declaration. Even if that were
a plausible explanation for the omission, the inconsistencies between the content of
the medical report and petitioner’s testimony remain. Nothing in the application
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refers to a hospital visit on May 9, or to any medications prescribed. The evidence
in the record does not compel the conclusion that the petitioner was testifying
credibly.
Substantial evidence also supports the agency’s finding that petitioner was
not testifying credibly about his employment history. He did not present any
corroborating evidence about his work history at US Mac. It is true that we stated,
in a pre-REAL ID Act case, that a petitioner might be excused from providing
employment records where they were not “‘easily available’ because [the
petitioner’s] employer had fired him.” Ge v. Ashcroft, 367 F.3d 1121, 1127 (9th
Cir. 2004). But petitioner’s testimony that he was able to see his former employer
at US Mac at any time, even after he was terminated, undermines the force of the
analogy to Ge.
Finally, substantial evidence supports the denial of withholding of removal
under the CAT. Because we uphold the adverse credibility finding, petitioner’s
CAT claim rests solely on the U.S. State Department country reports he submitted
with his application. Those reports do not establish that petitioner would more
likely than not be tortured in China. They mention that some labor activists have
been detained, sentenced to reeducation through labor, or subject to surveillance or
harassment. But they do not support an inference that petitioner would face the
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“severe pain or suffering” that is a key hallmark of torture, as defined by the CAT
itself and the relevant regulations and case law. See 8 C.F.R. § 208.18(a); see also
Kamalthas v. INS, 251 F.3d 1279, 1282 (9th Cir. 2001).
PETITION DENIED.
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