Filed: Jan. 09, 2020
Latest Update: Mar. 03, 2020
Summary: NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 9 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JIKUN HOU; SHANSHAN XU, No. 17-71689 Petitioners, Agency Nos. A089-674-342 A200-841-386 v. WILLIAM P. BARR, Attorney General, MEMORANDUM* Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted January 7, 2020** San Francisco, California Before: WALLACE and FRIEDLAND, Circuit Judges, and HILLMAN,*** District Judge. Petitioners
Summary: NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 9 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JIKUN HOU; SHANSHAN XU, No. 17-71689 Petitioners, Agency Nos. A089-674-342 A200-841-386 v. WILLIAM P. BARR, Attorney General, MEMORANDUM* Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted January 7, 2020** San Francisco, California Before: WALLACE and FRIEDLAND, Circuit Judges, and HILLMAN,*** District Judge. Petitioners J..
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NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 9 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JIKUN HOU; SHANSHAN XU, No. 17-71689
Petitioners, Agency Nos. A089-674-342
A200-841-386
v.
WILLIAM P. BARR, Attorney General, MEMORANDUM*
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 7, 2020**
San Francisco, California
Before: WALLACE and FRIEDLAND, Circuit Judges, and HILLMAN,***
District Judge.
Petitioners Jikun Hou and Shanshan Xu, Chinese nationals and citizens,
petition for review of a decision of the Board of Immigration Appeals (“BIA”)
*
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 Honorable Timothy Hillman, United States District Judge for the
District of Massachusetts, sitting by designation.
affirming a denial by an Immigration Judge (“IJ”) of their claims for asylum,
withholding of removal, and protection under the Convention Against Torture
(“CAT”) arising out of Xu’s contention that she was forced to obtain an abortion
by Chinese authorities in 2004. We hold that we lack jurisdiction to review the
agency’s denial of Petitioners’ asylum application as untimely, that substantial
evidence supports the agency’s adverse credibility finding, and that substantial
evidence supports the agency’s determination that Petitioners are not otherwise
entitled to relief on their CAT and withholding of removal claims.1
Petitioners last arrived in the United States in March 2008. The operative
application was filed in July 2011. Because Petitioners filed their asylum petition
more than one year following their arrival in the United States, the petition was
untimely absent a showing of extraordinary circumstances. See Toj-Culpatan v.
Holder,
612 F.3d 1088, 1090 (9th Cir. 2010) (per curiam); 8 U.S.C.
§ 1158(a)(2)(B), (D). Petitioners’ challenge to the agency’s determination that
extraordinary circumstances did not excuse their failure to file within one year
hinges on a factual dispute about the point at which Petitioners were able to file for
asylum. In light of this fact dispute, we lack jurisdiction to review the agency’s
1
“Where, as here, the Board incorporates the IJ’s decision into its own
without citing Matter of Burbano, 20 I. & N. Dec. 872 (BIA 1994), this court will
review the IJ’s decision to the extent incorporated.” Medina-Lara v. Holder,
771
F.3d 1106, 1111 (9th Cir. 2014). We refer to the BIA and the IJ collectively as
“the agency.”
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extraordinary circumstances determination. See Gasparyan v. Holder,
707 F.3d
1130, 1134 (9th Cir. 2013).
Substantial evidence supports the agency’s adverse credibility determination
as to Xu. Kin v. Holder,
595 F.3d 1050, 1054 (9th Cir. 2010) (explaining that, in
applying the substantial evidence standard, “[w]e reverse the BIA’s decision only
if the petitioner’s evidence was ‘so compelling that no reasonable factfinder could
find that he was not credible’” (quoting Farah v. Ashcroft,
348 F.3d 1153, 1156
(9th Cir. 2003))). Record evidence permitted the IJ to find that Xu began her
testimony reading from notes, was evasive under difficult questioning, was willing
to misrepresent her address to immigration authorities, and failed to submit
independent corroboration of her claims. Accordingly, substantial evidence in the
record supports the IJ’s finding that Xu was not credible. See Bingxu Jin v.
Holder,
748 F.3d 959, 966 (9th Cir. 2014) (“Substantial evidence supports the
agency’s conclusion that Jin never resided in Tucson or Las Vegas, and that his
motions to change venue to those locations were fraudulent. These
misrepresentations of residence are relevant to Jin’s credibility because they show
Jin’s purpose of forum shopping, and his dishonesty with the immigration court”).
In light of the special deference to which immigration judges’ findings are entitled,
see
Kin, 595 F.3d at 1056, Xu’s alternative explanations for her conduct do not
compel a contrary conclusion.
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Once the adverse credibility determination is upheld, Petitioners’ claims for
withholding of removal and CAT relief fail. As Petitioners acknowledge, their
challenge to the agency’s denial of CAT relief rests entirely on the IJ’s purported
adverse credibility determination. The same is true of their withholding of removal
claim to the extent it rests on Xu’s testimony about a forced abortion. To the
extent Petitioners argue that they are entitled to withholding of removal on other
grounds, substantial evidence supports the agency’s determination otherwise.
Petitioners submitted only a generalized country report that fails to document any
specific, individualized, non-speculative risk that Xu would face forced
sterilization if she returned to China. This evidence is not sufficient to compel the
conclusion that Xu was eligible for withholding of removal based on a clear
probability of such treatment.
The petition for review is DISMISSED in part and DENIED in part.
4