Zhongjie Guo v. Eric H. Holder Jr.

FILED
NOT FOR PUBLICATION JAN 24 2012

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

ZHONGJIE GUO, a.k.a. Zhong Jie Guo, No. 08-74117
a.k.a. Zhongjif Guo,
Agency No. A099-054-172
Petitioner,

v. MEMORANDUM *

ERIC H. HOLDER, Jr., Attorney General,

Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted January 17, 2012 **

Before: LEAVY, TALLMAN, and CALLAHAN, Circuit Judges.

Zhongjie Guo, 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 protection under the Convention Against Torture

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
(“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial

evidence the agency’s factual findings, applying the new standards governing

adverse credibility determinations created by the Real ID Act. Shrestha v. Holder,

590 F.3d 1034, 1039 (9th Cir. 2010). We review de novo claims of due process

violations in removal proceedings. Castillo-Perez v. INS, 212 F.3d 518, 523 (9th

Cir. 2000). We deny the petition for review.

Substantial evidence supports the agency’s adverse credibility finding based

on inconsistencies within Guo’s testimony, and between his testimony and asylum

application regarding his introduction to Christianity and his baptism. See

Shrestha, 590 F.3d at 1048 (“In the totality of circumstances it was a reasonable

adverse credibility determination, grounded in the record and based on real

problems with Shrestha’s testimony, not mere trivialities.”). Accordingly, in the

absence of credible testimony, we deny the petition as to Guo’s asylum and

withholding of removal claims. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th

Cir. 2003).

Substantial evidence also supports the BIA’s denial of CAT protection

because Guo’s CAT claim is based on the same statements the agency found not

credible, and he fails to point to any other evidence in the record that compels the

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conclusion it is more likely than not he would be tortured if returned to China. See

id. at 1156-57. Accordingly, Guo’s CAT claim fails.

Further, the BIA correctly found the record did not show improper conduct

by the IJ in questioning Guo. See 8 C.F.R. § 1003.10(b) (IJ “shall . . . interrogate,

examine, and cross-examine aliens”); 8 C.F.R. § 1003.36 (IJ “shall create and

control the Record of Proceedings”). The BIA also properly rejected Guo’s claim

that his counsel performed poorly because he did not meet the procedural

requirements for an ineffective assistance of counsel claim. See Reyes v. Ashcroft,

358 F.3d 592, 597-98 (9th Cir. 2004) (upholding application of Lozada

requirements where record provided little support for petitioner’s factual

allegations and where petitioner offered no reason for failure to comply).

Accordingly, we reject Guo’s claim that he was denied a meaningful opportunity to

establish his claim. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000)

(requiring error and substantial prejudice to prevail on due process challenge to

immigration proceedings).

Finally, we deny both Guo’s request for oral argument and his request for

attorney’s fees under the Equal Access to Justice Act.

PETITION FOR REVIEW DENIED.

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