Yanling Xu v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 24, 2019
• Docket: 17-73402
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 24 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

YANLING XU; SAI LIU, No. 17-73402

Petitioners, Agency Nos. A087-887-171 A087-887-172 v.

WILLIAM P. BARR, Attorney General, MEMORANDUM*

Respondent.

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

Submitted April 17, 2019**

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

Yanling Xu and Sai Liu, natives and citizens of China, petition for review of

the Board of Immigration Appeals’ (“BIA”) order dismissing their appeal from an

immigration judge’s (“IJ”) decision denying their application for asylum and

withholding of removal. Our jurisdiction is governed by 8 U.S.C. § 1252. We

review for substantial evidence the agency’s factual findings, applying the

* 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). 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.

Petitioners have waived any challenge to the agency’s finding that Xu

provided vague and inconsistent testimony regarding her involvement in

distributing church materials in her neighborhood in China. See Rizk v. Holder,

629 F.3d 1083, 1091 n.3 (9th Cir. 2011) (issue not raised in an opening brief is

waived).

Substantial evidence supports the agency’s adverse credibility determination

based on the inconsistencies between Xu’s testimony and her medical records

regarding her abortion, Xu’s vague and inconsistent testimony regarding her

involvement in distributing church materials in her neighborhood in China, and

petitioners’ misrepresentations regarding their residence in their motion to transfer

venue. See Jin v. Holder, 748 F.3d 959, 965-66 (9th Cir. 2014) (misrepresentation

of residence for purpose of forum shopping supports adverse credibility

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

reasonable under “the totality of circumstances”). Xu’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, petitioners’ asylum and

2 17-73402 withholding of removal claims fail. See Farah v. Ashcroft, 348 F.3d 1153, 1156

(9th Cir. 2003).

Finally, we lack jurisdiction to consider petitioners’ contentions that the IJ

should have granted their motion to change venue because they failed to raise this

contention to the BIA. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir.

2004) (court lacks jurisdiction to review claims not presented to the agency).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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