Zhiwen Hu v. Holder

FILED
NOT FOR PUBLICATION FEB 24 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ZHIWEN HU, No. 07-72866
Petitioner, Agency No. A095-441-696
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 24, 2014**
Pasadena, California
Before: SILVERMAN and HURWITZ, Circuit Judges, and VINSON, Senior
District Judge.***
Zhiwen Hu challenges the Board of Immigration Appeals’ denial of his
applications for withholding of removal and protection under the Convention
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable C. Roger Vinson, Senior District Judge for the U.S.
District Court for the Northern District of Florida, sitting by designation.
-2-
Against Torture. We have jurisdiction pursuant to 8 U.S.C. § 1252(a), and we
deny the petition.
The BIA adopted the immigration judge’s decision and incorporated its own
reasoning. We therefore review both decisions. Vasquez-Hernandez v. Holder,
590 F.3d 1053, 1054 (9th Cir. 2010).
Substantial evidence supports the IJ’s and BIA’s adverse credibility findings
under pre-REAL ID Act standards because there are “[m]ajor inconsistencies on
issues material to the alien’s claim of persecution.” Rizk v. Holder, 629 F.3d 1083,
1088 (9th Cir. 2011). Most significantly, Hu failed even to mention the existence
of his second wife in a pre-sentence report interview conducted prior to the
initiation of removal proceedings, although he did mention his earlier marriage and
his daughter. He was unable to explain this omission to the IJ despite that his
second wife and her forced abortion are central to his claims. Hu’s documentary
evidence is also suspect. For example, Hu’s divorce and marriage documents were
not issued contemporaneously with the subject events and all include the same
recent photograph. Based on these discrepancies and others, a reasonable
adjudicator would not be compelled to find Hu’s testimony or documentary
evidence credible. Id. at 1087; Kaur v. Gonzales, 418 F.3d 1061, 1064 (9th Cir.
2005) (“We accord special deference to an IJ’s credibility determination, and will
-3-
only exercise our power to grant a petition for review when the evidence compels a
contrary conclusion.”) (internal quotation marks and alteration omitted).
Accordingly, Hu has not established he is entitled to withholding of removal or
relief under the Convention Against Torture. See Farah v. Ashcroft, 348 F.3d
1153, 1156–57 (9th Cir. 2003).
The Court lacks jurisdiction to review the denial of Hu’s request for
voluntary departure. 8 U.S.C. § 1229c(f); Tovar-Landin v. Ashcroft, 361 F.3d
1164, 1166 (9th Cir. 2004). To the extent Hu raises a due process claim, that
argument was not presented to the BIA and is not considered by the Court. See
Segura v. Holder, 605 F.3d 1063, 1066 (9th Cir. 2010).
PETITION DENIED.