Xiaojuan Liu v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION MAR 05 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
XIAOJUAN LIU, No. 10-70539
Petitioner, Agency No. A099-407-583
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.
Xiaojuan Liu, a native and citizen of China, petitions pro se for review of the
Board of Immigration Appeals’ order dismissing her appeal from an immigration
judge’s (“IJ”) decision denying her application for asylum, withholding of
removal, and protection under the Convention Against Torture (“CAT”). Our
*
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).
jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence
the agency’s factual findings, applying the new standards governing adverse
credibility determinations created by 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 inconsistencies in Liu’s testimony regarding when her IUD was removed,
and regarding what day of the week the police required her to report after her
arrest. See id. at 1045-48 (adverse credibility determination was reasonable under
the REAL ID Act’s “totality of the circumstances”); Rivera v. Mukasey, 508 F.3d
1271, 1275 (9th Cir. 2007) (upholding agency finding that explanations were
insufficient). In the absence of credible testimony, Liu’s asylum and withholding
of removal claims fail. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.
2003).
Because Liu’s CAT claim is based on the same testimony found to be not
credible, and she does not point to any other evidence that shows it is more likely
than not she would be tortured if returned to China, her CAT claim also fails. See
id. at 1156-57.
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Finally, in her opening brief, Liu contends the agency denied her a full and
fair hearing and the IJ abandoned her role as a neutral fact-finder. We lack
jurisdiction over these due process claims because Liu did not exhaust them before
the agency. See Brezilien v. Holder, 569 F.3d 403, 412 (9th Cir. 2009) (no
jurisdiction to review due process claim where petitioner failed to exhaust the
claim).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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