Qinlin Zhang v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 25, 2022
• Docket: 15-73747
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 25 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

QINLIN ZHANG, No. 15-73747

Petitioner, Agency No. A088-106-922

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.

Qinlin Zhang, a native and citizen of China, petitions pro se for review of

the Board of Immigration Appeals’ (“BIA”) 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

* 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). jurisdiction 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 in part and dismiss in part the petition for

review.

Substantial evidence supports the agency’s adverse credibility determination

based on similarities, including verbatim phrasing, between Zhang’s declaration

and those of two unidentified applicants. See Matter of R-K-K-, 26 I. & N. Dec.

658, 659 (BIA 2015) (“significant similarities between statements submitted by

applicants in different proceedings” may support an adverse credibility

determination); see also Shrestha, 590 F.3d at 1048 (adverse credibility finding

reasonable under the totality of the circumstances). Zhang’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, Zhang’s asylum

and withholding of removal claims fail. See Farah v. Ashcroft, 348 F.3d 1153,

1156 (9th Cir. 2003).

We lack jurisdiction to consider Zhang’s contentions concerning a pattern or

practice of persecution, membership in a disfavored group, and his fear of harm as

a returnee because he did not raise these arguments before the agency. See Barron

v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (no subject-matter jurisdiction

2 15-73747 over claims not presented in administrative proceedings below).

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

because Zhang’s claim was based on the same testimony the agency found not

credible, and the record does not otherwise compel 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 information from country conditions reports Zhang

references in his opening brief that are not part of the administrative record

considered by the agency. See Fisher v. INS, 79 F.3d 955, 963-64 (9th Cir. 1996)

(en banc).

The temporary stay of removal remains in place until the mandate issues.

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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