NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 30 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KUN JI, No. 14-73728
Petitioner, Agency No. A205-566-220
v.
MEMORANDUM *
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 20, 2017
San Francisco, California
Before: THOMAS, Chief Judge, MURGUIA, Circuit Judge, and BAYLSON**
District Judge.
Petitioner, Kun Ji, challenges whether the immigration judge (IJ) and the
Board of Immigration Appeals (BIA) had substantial evidence to find Ji not
credible in his account of his experiences in China.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Michael M. Baylson, United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
The panel applies the standards of the REAL ID Act to Ji’s application for
asylum, withholding of removal, and Convention against Torture (CAT) relief.
Shrestha v. Holder, 590 F.3d 1034, 1039–40 (9th Cir. 2010). The court reviews
adverse credibility determinations under a substantial evidence standard. Id. at
1039. This standard requires the panel to uphold the adverse credibility finding
“unless the evidence compels a contrary result.” Tekle v. Mukasey, 533 F.3d 1044,
1051 (9th Cir. 2008) (internal quotation marks omitted). “Where, as here, the BIA
reviewed the IJ’s credibility-based decision for clear error and ‘relied upon the IJ’s
opinion as a statement of reasons’ but ‘did not merely provide a boilerplate
opinion,’ we ‘look to the IJ’s oral decision as a guide to what lay behind the BIA’s
conclusion.” Lai v. Holder, 773 F.3d 966, 970 (9th Cir. 2014) (quoting Tekle, 533
F.3d at 1051). The panel must review “the reasons explicitly identified by the
BIA, and then examine the reasoning articulated in the IJ’s oral decision in support
of those reasons.” Tekle, 533 F.3d at 1051; accord Ahmed v. Keisler, 504 F.3d
1183, 1190–91 (9th Cir. 2007). The panel does not review the parts of the IJ’s
adverse credibility finding that the BIA did not mention or single out as significant.
Tekle, 533 F.3d at 1051.
Applying these standards, we deny the petition for review and uphold the
BIA’s decision as supported by substantial evidence.
1. “The IJ must provide ‘specific and cogent reasons’ in support of an
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adverse credibility determination.” Malkandi v. Holder, 576 F.3d 906, 917 (9th
Cir. 2009) (quoting He v. Ashcroft, 328 F.3d 593, 595 (9th Cir. 2003). For a post-
REAL ID Act claim, a petitioner’s inconsistencies or inaccuracies are valid bases
for an adverse credibility determination “without regard to whether an
inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s
claim[.]” 8 U.S.C. § 1158(b)(1)(B)(iii); accord Jibril v. Gonzales, 423 F.3d 1129,
1138 n.1 (9th Cir. 2005).
Here, the IJ provided specific and cogent reasons in support of the adverse
credibility determination. With respect to Ji’s inconsistent testimony regarding his
hospital CT scan, it was permissible for the IJ to look to earlier asylum interview
statements to evaluate the consistency and credibility of Ji’s hearing testimony.
The IJ also reasonably rejected Ji’s explanation for the inconsistency, and could
therefore “properly rely on the inconsistency as support for an adverse credibility
determination.” Rizk v. Holder, 629 F.3d 1083, 1088 (9th Cir. 2011). The IJ also
had a valid basis for finding that Ji’s explanation of how he learned about his
wife’s abortion, including their concurrent hospital stays, was evasive. In similar
circumstances, a panel has found substantial evidence for an adverse credibility
where “the record amply demonstrate[d] a pattern of evasive responses that, when
pursued by the government and IJ, led to [petitioner’s] admissions and the giving
of a more accurate answer.” Bingxu Jin v. Holder, 748 F.3d 959, 965 (9th Cir.
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2014). Ji’s evasiveness further supports the adverse credibility determination. We
therefore conclude that substantial evidence supported the adverse credibility
finding against Ji.
2. In light of the adverse credibility determination, Ji is not eligible for
asylum, withholding of removal, or relief under the CAT. Because substantial
evidence supports the IJ’s adverse credibility finding, and Ji cannot meet his
burden of proof without his testimony, we find that substantial evidence supported
the BIA’s denial of Ji’s application for asylum. See, e.g., Jiang v. Holder, 754
F.3d 733, 740 (9th Cir. 2014). A failure to meet the burden of proof for asylum
means Ji cannot show eligibility for withholding of removal, either. Farah v.
Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003). Ji also cannot meet his burden of
proof to be eligible for CAT relief because without crediting Ji’s testimony, the
additional evidence in the record does not carry enough weight to show that it is
more likely than not that Ji will be tortured on his return to China. Garcia v.
Holder, 749 F.3d 785, 791–92 (9th Cir. 2014). We therefore deny the petition for
review.
PETITION DENIED.
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