Jingqi Xiao v. Merrick Garland

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 24 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JINGQI XIAO, No. 15-72725 Petitioner, Agency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 2 15-72725 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. 3 15-72725 15-72725 Court of Appeals for the Ninth Circuit ca9 9th Cir. Jingqi Xiao v. Merrick Garland 24 August 2022 Agency Unpublished 35f85c11efbbc1f0147a8924b6437ee73427e545

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