FILED
NOT FOR PUBLICATION JAN 27 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ZHIPENG ZHENG, No. 13-72133
Petitioner, Agency No. A089-976-611
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 21, 2015**
Before: CANBY, GOULD, and N.R. SMITH, Circuit Judges.
Zhipeng Zheng, a native and citizen of China, petitions for review of the
Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s decision denying his application for asylum, withholding of
removal, and protection under the Convention Against Torture (“CAT”). We have
*
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).
jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the
agency’s factual findings, applying the standards governing adverse credibility
determinations created by the REAL ID Act. Shrestha v. Holder, 590 F.3d 1034,
1039-40 (9th Cir. 2010). We deny the petition for review.
Substantial evidence supports the BIA’s adverse credibility determination
based on Zheng’s shifting testimony regarding visas he held to other countries, his
failure to corroborate his ongoing religious practice in the United States, and based
on the agency’s demeanor finding. See id. at 1048 (adverse credibility
determination reasonable under the totality of the circumstances); see also Singh-
Kaur v. INS, 183 F.3d 1147, 1151 (9th Cir. 1999) (giving special deference to
findings based on demeanor). Zheng’s explanations regarding the visas and the
availability of corroboration do not compel a contrary conclusion, see Zamanov v.
Holder, 649 F.3d 969, 974 (9th Cir. 2011); see also Shrestha, 590 F.3d at 1047-48.
We reject any contention Zheng makes that he was not afforded an opportunity to
explain discrepancies in his testimony. In the absence of credible testimony,
Zheng’s asylum and withholding of removal claims fail. See Farah v. Ashcroft,
348 F.3d 1153, 1156 (9th Cir. 2003).
Finally, Zheng’s CAT claim fails because it is based on the same testimony
the agency found not credible, and Zheng does not point to any other evidence in
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the record that compels the conclusion that it is more likely than not he would be
tortured by or with the consent or acquiescence of a public official in China. See
id. at 1156-57.
This dismissal is without prejudice to petitioner’s seeking prosecutorial
discretion or deferred action from the Department of Homeland Security. See
Reno v. American-Arab Anti-Discrimination Committee (AADC), 525 U.S. 471,
483-85 (1999) (stating that prosecutorial discretion by the agency can be granted at
any stage, including after the conclusion of judicial review).
PETITION FOR REVIEW DENIED.
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