NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 22 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WENYI XIONG, No. 16-71021
Petitioner, Agency No. A087-886-462
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 13, 2018**
Before: LEAVY, M. SMITH, and CHRISTEN, Circuit Judges.
Wenyi Xiong, 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 (“IJ”) decision denying his application for asylum,
withholding of removal, and relief under the Convention Against Torture (“CAT”).
*
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).
We have 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.
We do not consider the materials Xiong references in his opening brief that
are not part of the administrative record. See Fisher v. INS, 79 F.3d 955, 963-64
(9th Cir. 1996) (en banc).
Substantial evidence supports the agency’s adverse credibility determination
based on inconsistencies as to when Xiong first learned about Christianity, the date
of his alleged persecution, the number of times the police interrogated him, the
churches he attended in the United States, and his occupation in China. See id. at
1048 (adverse credibility finding reasonable under the totality of the
circumstances). Xiong’s explanations do not compel a contrary conclusion. See
Lata v. INS, 204 F.3d 1241, 1245 (9th Cir. 2000). Thus, in the absence of credible
testimony, in this case, Xiong’s asylum and withholding of removal claims fail.
See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).
Xiong’s CAT claim also fails because it is based on the same testimony the
agency found not credible, and Xiong does not point to any other evidence in the
2 16-71021
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.
PETITION FOR REVIEW DENIED.
3 16-71021