Kui Ma v. Matthew Whitaker

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 20, 2018
• Docket: 14-71056
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 20 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT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.

3 14-71056 / 15-71013 4 14-71056 / 15-71013