NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 20 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KUI MA, Nos. 14-71056
15-71013
Petitioner,
Agency No. A095-021-322
v.
MATTHEW G. WHITAKER, Acting MEMORANDUM*
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 17, 2018**
Before: WALLACE, SILVERMAN, and McKEOWN, Circuit Judges.
Kui Ma, a native 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
relief under the Convention Against Torture (“CAT”) (petition No. 14-71056), and
*
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).
the BIA’s order denying his motion to reopen (petition No. 15-71013). Our
jurisdiction is governed by 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 review for abuse of discretion the denial of a motion
to reopen and we review de novo questions of law. Mohammed v. Gonzales, 400
F.3d 785, 791-92 (9th Cir. 2005). We deny in part and dismiss in part the petitions
for review.
As to petition No. 14-71056, substantial evidence supports the agency’s
adverse credibility determination based on inconsistencies between Ma’s
testimony, asylum application, and record evidence as to where he lived and
worked in China and the United States, inconsistent testimony as to how many
passports Ma has had, and Ma’s failure to provide reasonably available
corroborating evidence. See Shrestha, 590 F.3d at 1048 (adverse credibility
determination reasonable under “the totality of circumstances”); see also Huang v.
Holder, 744 F.3d 1149, 1155 (9th Cir. 2014) (citing the lack of corroborating
evidence as a basis for the adverse credibility determination). Ma’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, Ma’s asylum
and withholding of removal claims fail. See Farah v. Ashcroft, 348 F.3d 1153,
2 14-71056 / 15-71013
1156 (9th Cir. 2003).
Ma’s CAT claim also fails because it rests on the same testimony that the
agency found not credible, and Ma points to no other evidence showing that it is
more likely than not he will be tortured if returned to China. See id. at 1156-57.
As to petition No. 15-71013, the BIA did not abuse its discretion in denying
Ma’s motion to reopen as untimely where he failed to demonstrate that an
exception to the time limitation applied. See 8 C.F.R. § 1003.2(c)(3); see also
Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010) (discussing the time
limitation for a motion to reopen and possible exceptions). We reject Ma’s
contention that the BIA applied the incorrect standard in its analysis. Finally, we
lack jurisdiction to review the BIA’s decision not to reopen proceedings sua
sponte. See Bonilla v. Lynch, 840 F.3d 575, 588 (9th Cir. 2016) (“[T]his court has
jurisdiction to review Board decisions denying sua sponte reopening for the limited
purpose of reviewing the reasoning behind the decisions for legal or constitutional
error.”)
We reject Ma’s contention that the BIA violated his due process rights. See
Lata, 204 F.3d at 1246 (requiring error to prevail on a due process claim).
No. 14-71056: PETITION FOR REVIEW DENIED.
No. 15-71013: PETITION FOR REVIEW DENIED in part;
DISMISSED in part.
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