Yixia Lu v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION DEC 16 2014

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

YIXIA LU, No. 11-70989

Petitioner, Agency No. A099-731-205

v.
MEMORANDUM*
ERIC H. HOLDER, JR., Attorney
General,

Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted December 12, 2014**
Pasadena, California

Before: GRABER, GOULD, and CALLAHAN, Circuit Judges.

Yixia Lu (“Lu”) petitions for review of the Board of Immigration Appeals’

(“BIA”) dismissal of her appeal from the immigration judge’s (“IJ”) denial of her

applications for asylum, withholding of removal, and protection under the

*
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).
Convention Against Torture (“CAT”). Lu raises two arguments: 1) that the BIA

erred in affirming the IJ’s adverse credibility determination; and 2) that the BIA

erred in finding that she did not submit sufficient corroborating evidence of her

claims, because she received insufficient notice of the requirement to submit such

evidence and was denied the opportunity to present such evidence or explain why

it was unavailable. We have jurisdiction under 8 U.S.C. § 1252, and we deny the

petition in part and dismiss it in part.

Because the IJ’s adverse credibility determination, which the BIA adopted,

is supported by substantial evidence, we reject Lu’s first argument. See Shrestha v.

Holder, 590 F.3d 1034, 1039 (9th Cir. 2010). Under the REAL ID Act, which

applies to Lu’s 2006 application, credibility determinations must be made

“[c]onsidering the totality of the circumstances” and may rest on “all relevant

factors.” 8 U.S.C. § 1158(b)(1)(B)(iii); see also Shrestha, 590 F.3d at 1039–41. Lu

gave inconsistent and unresponsive testimony, including inconsistencies regarding

when she began her asylum application and the date of the incident which caused

her to fear future persecution in China, and repeated unresponsive answers about

when she became aware of the existence of the asylum remedy. We will reverse a

credibility determination only “when the evidence compel[s] a contrary

conclusion,” and the evidence does not do so here. Kaur v. Gonzales, 418 F.3d

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1061, 1064 (9th Cir. 2005) (alteration in original and internal quotation marks

omitted). In the absence of credible testimony, Lu does not meet her burden for

either asylum or withholding of removal. See Farah v. Ashcroft, 348 F.3d 1153,

1156 (9th Cir. 2003). Also, though the standard for relief under CAT is different

from that of asylum or withholding of removal, Lu’s CAT claim relies on the same

testimony the agency found not to be credible. Absent her testimony, the credible

record provides no support for her claim that she would, more likely than not, be

tortured upon her return to China. Lu does not meet her burden under CAT. See

id. at 1156–57.

Lu contends that she was never provided an opportunity to respond to the IJ

and the government concerning the discrepancy between the date she began her

application for asylum and that of the alleged incident creating a fear of future

persecution. However, Lu failed to administratively exhaust this issue before the

BIA and we lack jurisdiction to review it. See Abebe v. Mukasey, 554 F.3d 1203,

1207–08 (9th Cir. 2009) (en banc) (per curiam).

Having determined that substantial evidence supports the agency’s adverse

credibility finding, we need not reach Lu’s argument regarding corroborating

evidence. Cf. Lai v. Holder, No. 10-73473, — F.3d —, —, 2014 WL 5573318, at

*7 (9th Cir. Nov. 4, 2014) (“[W]hen an IJ’s other reasons for finding an asylum

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applicant not credible are not supported by substantial evidence, the applicant,

being ‘otherwise credible,’ is entitled to notice that [s]he needs to produce

corroborative evidence and an opportunity to either produce the evidence or

explain why it is unavailable.”)

Petition for review DENIED in part and DISMISSED in part.

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