FILED
NOT FOR PUBLICATION AUG 15 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
YOUFU SUI, No. 11-72859
Petitioner, Agency No. A097-877-623
v.
MEMORANDUM*
ERIC H. HOLDER JR., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 13, 2013**
San Francisco, California
Before: HAWKINS, THOMAS, and McKEOWN, Circuit Judges.
Petitioner Youfu Sui (“Sui”), a native and citizen of China, petitions for review
of the Board of Immigration Appeals’ (“BIA”) decision affirming the Immigration
Judge’s (“IJ”) adverse credibility finding. We deny the petition because the evidence
*
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).
does not compel a contrary conclusion. Jie Cui v. Holder, 712 F.3d 1332, 1336 (9th
Cir. 2013).
Because Sui’s entire claim for persecution is based on a single arrest and
detention, the details of that event are critical. See Kaur v. Gonzales, 418 F.3d 1061,
1067 (9th Cir. 2005). Sui’s application described in detail a significant beating
following the first interrogation, an event which he completely failed to mention in
his direct testimony, despite being directly asked by counsel following a discussion
of the first interrogation: “How did the police respond?” and “What did they do?”
Moreover, the addition of new facts that enhance a persecution claim—such as being
beaten with a belt and slashed on the wrist with a glass shard—is also generally
suspect, particularly when, as here, the information is not provided until near the end
of the applicant’s testimony. Alvarez-Santos v. INS, 332 F.3d 1245, 1254 (9th Cir.
2003); see also Kin v. Holder, 595 F.3d 1050, 1057 (9th Cir. 2010). All of the reasons
cited by the IJ and BIA go to the heart of Sui’s asylum claim and properly support an
adverse credibility finding. Ceballos-Castillo v. INS, 904 F.2d 519, 520 (9th Cir.
1990).1
1
Sui filed an application for asylum before the May 11, 2005, enactment of the
REAL ID Act, Pub. L. No. 109-13, 119 Stat. 231, and thus its amendments pertaining
to credibility determinations do not apply to this appeal.
2
Sui also claims for the first time on appeal that he was denied due process
because he was not afforded an opportunity for redirect at his hearing before the IJ.
However, due process claims must be exhausted, Huang v. Mukasey, 520 F.3d 1006,
1008 (9th Cir. 2008), including claims of “procedural error that an administrative
tribunal could remedy.” See De Mercado v. Mukasey, 566 F.3d 810, 815 n.4 (9th Cir.
2009). We thus lack jurisdiction over this claim and it must be dismissed. Id.; see
also Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004).
DENIED in part, DISMISSED in part. 2
2
Sui’s Motion to (sic) Stay of Removal Pending Review is denied as moot.
3