NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT SEP 03 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
BINHUA FU and YING PU, No. 11-70922
Petitioners, Agency Nos. A089-703-798
A089-703-799
v.
ERIC H. HOLDER, Jr., Attorney General, MEMORANDUM*
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 15, 2014**
San Francisco, California
Before: McKEOWN and CLIFTON, Circuit Judges, and EZRA, District Judge.***
Binhua Fu and Ying Pu petition for review from the Board of Immigration
Appeals’s (“BIA”) order dismissing their appeal from the Immigration Judge’s
*
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).
***
The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
(“IJ”) denial of their petition for asylum, withholding of removal, and relief under
the Convention Against Torture (“CAT”). For the reasons that follow, we deny the
petition for review.
Petitioners first argue that their due process rights were infringed due to the
IJ’s questioning. Due process entitles an alien in removal proceedings to a “full
and fair hearing of his [or her] claims and a reasonable opportunity to present
evidence on his [or her] behalf.” Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.
2000). “To prevail on a due process challenge to [immigration] proceedings, [an
alien] must show error and substantial prejudice.” Larita-Martinez v. INS, 220
F.3d 1092, 1095 (9th Cir. 2000) (second alteration in original) (quoting Lata v.
INS, 204 F. 3d 1241, 1246 (9th Cir. 2000)). According to Petitioners, the IJ’s
“antagonism” rose to the level of denying them a fair and neutral tribunal by
interrupting Fu’s testimony on several occasions to ask specific questions and
expressing frustration at his answers. However, as the BIA properly noted, the IJ
permitted Fu’s counsel to resume their examination of him, provided Fu with the
opportunity to clarify his testimony, and allowed Fu’s counsel to conduct redirect
examination of Fu, which he declined. Petitioners have not identified any material
evidence that they were precluded from presenting. As such, they cannot show
error or prejudice, and their due process claim fails.
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Petitioners also argue that the IJ’s adverse credibility determination of Fu
was unsupported by substantial evidence. Under the REAL ID Act, the IJ may
base an adverse credibility determination on any relevant factor that, considered in
light of the totality of the circumstances, can reasonably be said to have a “bearing
on a petitioner’s veracity.” Shrestha v. Holder, 590 F.3d 1034, 1044 (9th Cir.
2010). Here, considerable discrepancies existed between Fu’s asylum application,
his asylum declaration, and his testimony regarding his claim of past persecution in
China on account of his Christian religion. For example, in Fu’s asylum
declaration, he testified that during his November 2003 arrest, he was ordered to
call his family on a cell phone, he was given a white and blue uniform, and that
after his release from the detention center, a friend picked him up and he stayed at
his friend’s home for a week. However, at the hearing, he testified that he could
not call his family, he was not given a uniform and spent his entire detention in his
underwear, and upon release, his friend immediately took him home. When the IJ
questioned Fu about these inconsistencies, he only explained that his English was
poor, which the IJ discredited because Fu admitted that his attorney’s law firm had
Chinese language services. Additionally, in Fu’s asylum application, he reported
being evicted by the Chinese police twice between August and October 2003. Yet,
in his asylum declaration, he reported only living at one address in China. When
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the IJ questioned Fu about these additional inconsistencies, he dismissed them as
unimportant, emphasizing that there were more than ten times when the police
raided his church-home. Given Fu’s inconsistencies and his lack of credible
explanations, the record reveals substantial evidence to support the IJ’s adverse
credibility determination.
PETITION DENIED.
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