Xiaojuan Liu v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION MAR 05 2012

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

FOR THE NINTH CIRCUIT

XIAOJUAN LIU, No. 10-70539

Petitioner, Agency No. A099-407-583

v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

Respondent.

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

Submitted February 21, 2012 **

Before: FERNANDEZ, McKEOWN, and BYBEE, Circuit Judges.

Xiaojuan Liu, a native and citizen of China, petitions pro se for review of the

Board of Immigration Appeals’ order dismissing her appeal from an immigration

judge’s (“IJ”) decision denying her application for asylum, withholding of

removal, and protection under the Convention Against Torture (“CAT”). Our

*
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).
jurisdiction is governed by 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, 1039-40 (9th Cir. 2010). We deny in part and dismiss in part the

petition for review.

Substantial evidence supports the agency’s adverse credibility determination

based on inconsistencies in Liu’s testimony regarding when her IUD was removed,

and regarding what day of the week the police required her to report after her

arrest. See id. at 1045-48 (adverse credibility determination was reasonable under

the REAL ID Act’s “totality of the circumstances”); Rivera v. Mukasey, 508 F.3d

1271, 1275 (9th Cir. 2007) (upholding agency finding that explanations were

insufficient). In the absence of credible testimony, Liu’s asylum and withholding

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

2003).

Because Liu’s CAT claim is based on the same testimony found to be not

credible, and she does not point to any other evidence that shows it is more likely

than not she would be tortured if returned to China, her CAT claim also fails. See

id. at 1156-57.

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 Finally, in her opening brief, Liu contends the agency denied her a full and

fair hearing and the IJ abandoned her role as a neutral fact-finder. We lack

jurisdiction over these due process claims because Liu did not exhaust them before

the agency. See Brezilien v. Holder, 569 F.3d 403, 412 (9th Cir. 2009) (no

jurisdiction to review due process claim where petitioner failed to exhaust the

claim).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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