NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 17 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
XIAO JUN HE, No. 12-70443
Petitioner, Agency No.
A088-794-717
v.
JEFFERSON SESSIONS, III, Attorney
General, MEMORANDUM*
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 12, 2017**
Honolulu, Hawaii
Before: SCHROEDER, NELSON, and MCKEOWN, Circuit Judges.
Xiao Jun He, a native and citizen of the People’s Republic of China, petitions
for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his
appeal from an Immigration Judge’s (“IJ”) decision denying his application for
*
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).
asylum, withholding of removal, and protection under the Convention Against
Torture (“CAT”). We have jurisdiction pursuant to 8 U.S.C. § 1252, and we deny
the petition.
Substantial evidence supports the BIA’s denial of relief based on He’s failure
to satisfy his burden of proof by proffering sufficient corroborating evidence to
support his claims of past persecution and a well-founded fear of future persecution.
Under the REAL ID Act, He was required to submit reasonably obtainable evidence
to corroborate his testimony upon the IJ’s request. 8 U.S.C. § 1158(b)(1)(B)(ii).
Finding that He’s evidence was insufficient to corroborate his fear of future
persecution, the IJ granted He a continuance to produce additional witnesses. See
Ren v. Holder, 648 F.3d 1079, 1091–92 (9th Cir. 2011) (holding that IJ cannot deny
application for asylum without first notifying applicant that proffered corroborating
evidence is insufficient and providing applicant with opportunity to produce
additional evidence). We note that the IJ took this precautionary measure over a
year before our court issued the decision in Ren. He, who was represented by
counsel throughout, did not produce any witnesses, but rather offered an
unauthenticated letter after the filing deadline had passed. He similarly failed to
corroborate his claim of past persecution. See Ren, 648 F.3d 1093–94. The
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government’s objections to He’s evidence of past persecution, and the IJ’s statement
regarding their “foundation and reliability” at the outset of the hearing, were
sufficient to put He on notice that he needed to produce additional evidence. See id.
Unlike the respondent in Bhattarai v. Lynch, 835 F.3d 1037, 1046–47 (9th Cir.
2016), who received neither notice nor an opportunity to produce corroborating
evidence, He received a continuance in which to do so. Given He’s failure to procure
additional corroborating evidence or explain why he could not reasonably have
obtained it, the BIA properly dismissed He’s appeal.
Finally, He waived his withholding of removal and CAT claims because he
did not challenge the IJ’s decision regarding those claims on appeal to the BIA.
Consequently, we do not have jurisdiction to hear them. See 8 U.S.C. § 1252(d)(1);
Andia v. Ashcroft, 359 F.3d 1181, 1184 (9th Cir. 2004).
PETITION DENIED.
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