Xiu Chen v. William Barr

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 22 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
XIU CHEN, No. 17-72833
Petitioner, Agency No. A209-168-504
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 20, 2020**
Before: HAWKINS, GRABER, and CLIFTON, Circuit Judges.
Petitioner Xiu Chen timely seeks review of the Board of Immigration
Appeals' ("BIA") dismissal of his appeal from an immigration judge's ("IJ") denial
of relief from removal. We have jurisdiction under 8 U.S.C. § 1252, and we deny
the petition.
*
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).
1. Substantial evidence supports the adverse credibility determination.
8 U.S.C. § 1252(b)(4)(B); see Lizhi Qiu v. Barr, 944 F.3d 837, 842 (9th Cir. 2019)
("We must uphold an adverse credibility determination ‘so long as even one basis
is supported by substantial evidence.’" (quoting Rizk v. Holder, 629 F.3d 1083,
1088 (9th Cir. 2011))). The record supports the agency's finding that Petitioner
offered inconsistent testimony. For example, Petitioner testified that he first
thought about coming to the United States in 2015, after he was detained and
beaten. Confronted with evidence of his two prior visa applications, he then
recalled that he tried to come as a student in 2004 and as a refugee in 2013.
Petitioner's argument on appeal—that he was asked only when he thought about
coming after being persecuted in 2015—is contrary to the record
Petitioner testified that, after being harassed for two to three months
following his release from detention in early July 2015, he closed his business in
"early October" 2015 and left for Thailand "a few days after." That testimony
conflicts with his passport, which recorded that he left for Thailand on November
13, 2015. In light of Petitioner's repeated testimony that he left in October, three
months after his release from detention in July, the BIA was not required to believe
Petitioner's explanation that he misremembered the month. See Zamanov v.
Holder, 649 F.3d 969, 974 (9th Cir. 2011) (holding that, given the importance of
the testimony, the agency was not required to believe the petitioner's explanation).
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Substantial evidence likewise supports the IJ's determination that Petitioner's
demeanor also weighed against his credibility. The IJ provided specific examples
of Petitioner's demeanor, including that he maintained steady eye contact during
most questioning but, when asked about inconsistencies, he "failed to maintain eye
contact, looked away, and fidgeted in his seat." The IJ's examples are permissible
observations of demeanor that weigh against credibility, and our cases do not
require that the IJ make a record during the hearing. Manes v. Sessions, 875 F.3d
1261, 1264 (9th Cir. 2017) (per curiam).
2. The BIA correctly held that, without credible testimony, Petitioner failed
to establish eligibility for asylum or withholding of removal. Farah v. Ashcroft,
348 F.3d 1153, 1156 (9th Cir. 2003).
3. Substantial evidence supports the BIA's determination that Petitioner
failed to prove that it is more likely than not that he will be tortured by, or with the
acquiescence of, public officials in China. 8 C.F.R. § 208.16(c)(2); Garcia-Milian
v. Holder, 755 F.3d 1026, 1033 (9th Cir. 2014).
PETITION DENIED.
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