FILED
NOT FOR PUBLICATION
FEB 19 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LIAN QIU ZHAO, AKA Qiu Zhoa Lian, No. 12-72640
AKA Lian Qiu Zhoa,
Agency No. A098-740-521
Petitioner,
v. MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 10, 2016
San Francisco, California
Before: SILVERMAN, FISHER, and TALLMAN, Circuit Judges.
Lian Qui Zhao, a/k/a Lian Qui Zhoa, petitions for review of the Board of
Immigration Appeals’ decision dismissing his appeal from the Immigration
Judge’s order denying his applications for asylum, withholding of removal, and
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
relief under the Convention Against Torture. We have jurisdiction under 8 U.S.C.
§ 1252, and we DENY the petition.
We review an adverse credibility finding for substantial evidence. Kin v.
Holder, 595 F.3d 1050, 1054 (9th Cir. 2010). We reverse the BIA’s decision only
if the petitioner’s evidence was “so compelling that no reasonable factfinder could
find that he was not credible.” Id. (internal quotation marks omitted) (quoting
Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003)). The substantial evidence
standard is deferential, but the BIA must identify “specific and cogent reasons”
supporting its adverse credibility finding. Id. at 1055. At least one of the reasons
that gave rise to the adverse credibility finding must go to the heart of the asylum
claim. See id.
Substantial evidence supports the agency’s credibility determination. The
Board’s valid conclusion that Zhao provided vacillating testimony concerning the
circumstances of his departure at what he claimed was “the most dangerous
moment” is substantial evidence for discrediting Zhao’s testimony. The BIA
reasonably determined that Zhao had not credibly established essential facts
relating to his departure from China, because Zhao testified that he had no trouble
leaving China, and that the public security bureau did not stop him, but also that he
did not remember if the public security bureau tried to stop him from getting a
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passport, that the public security bureau did attempt to stop him from leaving, and
that he did not go to the public security bureau. Although ideally the IJ would
have directly confronted Zhao with these inconsistencies before relying on them to
arrive at an adverse credibility determination, see Soto-Olarte v. Holder, 555 F.3d
1089, 1092 (9th Cir. 2009), we conclude Zhao was given a minimally adequate
opportunity to explain the inconsistencies in light of the repeated questions on this
issue, see Garcia v. Holder, 749 F.3d 785, 790 (9th Cir. 2014). The events
leading up to Zhao’s departure are at the heart of his claim for asylum, because
Zhao applied for relief alleging that he left as the deadline approached for his
compliance with the terms of his conditional release from jail. See Zamanov v.
Holder, 649 F.3d 969, 973 (9th Cir. 2011) (“Testimony about the events leading up
to the petitioner’s departure, or about the circumstances that led to the persecution,
go to the ‘heart of the claim.’”) (citing Chebchoub v. I.N.S., 257 F.3d 1038, 1043
(9th Cir. 2001); Don v. Gonzales, 476 F.3d 738, 741 (9th Cir.2007)).
The IJ additionally found that Zhao’s long pauses and puzzled looks
supported an adverse credibility finding. The IJ’s demeanor finding is entitled to
special deference. Kin, 595 F.3d at 1056. The BIA endorsed this demeanor
determination, and we agree that it provides substantial evidence in support of the
overall credibility finding because the IJ has provided specific examples of Zhao’s
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demeanor which the IJ noted on the record, and which caused the IJ to question
Zhao’s credibility. See id.
Because we do not find that “any reasonable adjudicator would be
compelled to conclude to the contrary,” we do not disturb the agency’s credibility
finding. Rizk v. Holder, 629 F.3d 1083, 1087 (9th Cir. 2011). In the absence of
credible testimony, Zhao necessarily failed to carry his burden of proving past
persecution, a well-founded fear of future persecution, or a clear probability of
future persecution. See Madrigal v. Holder, 716 F.3d 499, 503 (9th Cir. 2013)
(asylum requires establishing either past persecution or a well-founded fear of
future persecution); Viridiana v. Holder, 646 F.3d 1230, 1239 (9th Cir. 2011)
(withholding of removal requires establishing either past persecution or a clear
probability of future persecution).
Although “[a]n adverse credibility determination is not necessarily a death
knell to CAT protection,” Shrestha v. Holder, 590 F.3d 1034, 1048 (9th Cir. 2010),
the Board did not err in concluding that Zhao failed to sustain his burden to show
eligibility for relief under CAT. See 8 C.F.R. § 1208.16(c)(2); Maldonado v.
Lynch, 786 F.3d 1155, 1164 (9th Cir. 2015) (en banc) (“Section 1208.16(c)(2)
provides that an applicant for deferral of removal must demonstrate that it is more
likely than not that he or she will be tortured if removed.”).
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PETITION FOR REVIEW DENIED.
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