Yinghai Xia v. Eric H. Holder Jr.

FILED
NOT FOR PUBLICATION MAR 02 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
YINGHAI XIA, No. 08-73739
Petitioner, Agency No. A079-544-287
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 21, 2012 **
Before: FERNANDEZ, McKEOWN, and BYBEE, Circuit Judges.
Yinghai Xia, a native and citizen of China, petitions for review of the Board
of Immigration Appeals’ order dismissing his appeal from an immigration judge’s
decision denying his application for asylum, withholding of removal, and
protection under the Convention Against Torture (“CAT”). Our jurisdiction is
*
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).
governed by 8 U.S.C. § 1252. We review de novo questions of law and for
substantial evidence factual findings. Husyev v. Mukasey, 528 F.3d 1172, 1177
(9th Cir. 2008). We deny the petition for review.
Substantial evidence supports the agency’s adverse credibility finding based
on the inconsistency between Xia’s written statement and his testimony regarding
whether his mother was beaten when they were arrested. See Pal v. INS, 204 F.3d
935, 939-40 (9th Cir. 2000) (inconsistencies between testimony and application
regarding injuries petitioner received during assaults went to heart of claim); Wang
v. INS, 352 F.3d 1250, 1259 (9th Cir. 2003) (court is bound to accept adverse
credibility finding as long as one identified ground is supported and goes to heart
of claim). Xia’s contention that he was not given a reasonable opportunity to
explain the inconsistency is belied by the record. Accordingly, in the absence of
credible testimony, we deny Xia’s asylum and withholding of removal claims. See
Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).
Further, Xia’s CAT claim fails because it is based on the same statements
the agency found not credible, and the record does not otherwise compel a finding
it is more likely than not he would be tortured by or with the acquiescence of the
government if returned to China. See id. at 1156-57.
PETITION FOR REVIEW DENIED.
2 08-73739