NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 24 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JINGQI XIAO, No. 15-72725
Petitioner, Agency No. A206-038-153
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 17, 2022**
Before: S.R. THOMAS, PAEZ, and LEE, Circuit Judges.
Jingqi Xiao, a native and citizen of China, petitions pro se for review of the
Board of Immigration Appeals’ order dismissing his appeal from an immigration
judge’s decision denying his applications for asylum, withholding of removal, and
protection under the Convention Against Torture (“CAT”). We have jurisdiction
*
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).
under 8 U.S.C. § 1252. We review for substantial evidence the agency’s factual
findings, applying the standards governing adverse credibility determinations
under the REAL ID Act. Shrestha v. Holder, 590 F.3d 1034, 1039-40 (9th Cir.
2010). We deny the petition for review.
Substantial evidence supports the agency’s adverse credibility determination
based on inconsistent testimony between Xiao and his witness regarding the
location of Pastor Zhou, and Xiao’s inconsistent testimony regarding the method
by which he contacted his potential witnesses. See id. at 1048 (adverse credibility
determination reasonable under “the totality of circumstances”); see also Li v.
Garland, 13 F.4th 954, 961 (9th Cir. 2021) (“[U]nder the REAL ID Act, . . . even
minor inconsistencies may have a legitimate impact on a petitioner’s credibility.”).
Xiao’s explanations do not compel a contrary conclusion. See Lata v. INS, 204
F.3d 1241, 1245 (9th Cir. 2000). In the absence of credible testimony, in this case,
Xiao’s asylum and withholding of removal claims fail. See Farah v. Ashcroft, 348
F.3d 1153, 1156 (9th Cir. 2003). As this determination is dispositive, we do not
reach Xiao’s remaining contentions regarding the merits of his asylum or
withholding of removal claims. See Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th
Cir. 2004).
Substantial evidence also supports the agency’s denial of Xiao’s CAT claim
because it was based on the same evidence found not credible, and he does not
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point to any other record evidence that compels the conclusion that it is more likely
than not he would be tortured by or with the consent or acquiescence of the
government if returned to China. See Shrestha, 590 F.3d at 1048-49.
We do not consider the materials Xiao 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).
The temporary stay of removal remains in place until issuance of the
mandate.
PETITION FOR REVIEW DENIED.
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