FILED
NOT FOR PUBLICATION APR 11 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MING FENG HE, No. 10-72895
Petitioner, Agency No. A099-539-584
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 9, 2014**
Pasadena, California
Before: THOMAS, M. SMITH, and CHRISTEN, Circuit Judges.
Ming Feng He petitions for review of a decision of the Board of Immigration
Appeals (BIA) affirming an immigration judge’s (IJ) denial of his application for
asylum and withholding of removal on adverse credibility grounds. He also
appeals the BIA’s decision to affirm the IJ’s denial of his Convention Against
*
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).
Torture (CAT) claim. Because He’s application for asylum was filed after March
11, 2005, we apply the standards set forth in the REAL ID Act. See Shrestha v.
Holder, 590 F.3d 1034, 1039 (9th Cir. 2010). We have jurisdiction under 8 U.S.C.
§ 1252, and we deny the petition.
The BIA’s adverse credibility determination was based at least in part on
the implausibility of He’s testimony that he chose to remain unemployed for five
years so he could attend church on Sundays. Under the REAL ID Act “a trier of
fact may base a credibility determination on . . . the inherent plausibility of the
applicant’s or witness’s account.” 8 U.S.C. § 1158(b)(1)(B)(iii). He contends that
the BIA engaged in impermissible speculation when it decided that his explanation
was implausible. He testified that he did not work in China, besides helping in his
sister’s store occasionally, and that his parents supported him for the five years
between his graduation from high school and leaving China. But he also testified
that his parents did not have a lot of money, that other parishioners could get
Sundays off of work because they worked for the government, and that his father
was a driver and was able to attend church on Sundays. The BIA also concluded
that He failed to corroborate his claims even though such corroboration was
reasonably obtainable, and the record shows that corroboration was requested by
the IJ. See Shrestha, 590 F.3d at 1047.
2
We will not disturb an adverse credibility finding unless “any reasonable
adjudicator would be compelled to conclude to the contrary.” Rizk v. Holder, 629
F.3d 1083, 1087 (9th Cir. 2011) (citation omitted). We cannot reach that
conclusion here.
By failing to show that he was eligible for asylum, He also failed to make
the more stringent showing that he was eligible for withholding of removal. See
Sowe v. Mukasey, 538 F.3d 1281, 1288 (9th Cir. 2008).
He presented only his discredited testimony and the 2008 Country Report
for China in support of his CAT claim. This evidence does not compel the
conclusion that He is more likely than not to be tortured if he returns to China. See
Almaghzar v. Gonzales, 457 F.3d 915, 922–23 (9th Cir. 2006). Therefore, the
BIA’s determination that He is not entitled to CAT protection is supported by
substantial evidence.
PETITION DENIED.
3