Zhongjie Guo v. Eric H. Holder Jr. , 466 F. App'x 683 ( 2012 )

FILED
NOT FOR PUBLICATION JAN 24 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ZHONGJIE GUO, a.k.a. Zhong Jie Guo, No. 08-74117
a.k.a. Zhongjif Guo,
Agency No. A099-054-172
Petitioner,
v. MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 17, 2012 **
Before: LEAVY, TALLMAN, and CALLAHAN, Circuit Judges.
Zhongjie Guo, a native and citizen of China, petitions for review of the
Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s (“IJ”) decision denying his application for asylum,
withholding of removal, and protection under the Convention Against Torture
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
(“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial
evidence the agency’s factual findings, applying the new standards governing
adverse credibility determinations created by the Real ID Act. Shrestha v. Holder,
590 F.3d 1034, 1039 (9th Cir. 2010). We review de novo claims of due process
violations in removal proceedings. Castillo-Perez v. INS, 212 F.3d 518, 523 (9th
Cir. 2000). We deny the petition for review.
Substantial evidence supports the agency’s adverse credibility finding based
on inconsistencies within Guo’s testimony, and between his testimony and asylum
application regarding his introduction to Christianity and his baptism. See
Shrestha, 590 F.3d at 1048 (“In the totality of circumstances it was a reasonable
adverse credibility determination, grounded in the record and based on real
problems with Shrestha’s testimony, not mere trivialities.”). Accordingly, in the
absence of credible testimony, we deny the petition as to Guo’s asylum and
withholding of removal claims. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th
Cir. 2003).
Substantial evidence also supports the BIA’s denial of CAT protection
because Guo’s CAT claim is based on the same statements the agency found not
credible, and he fails to point to any other evidence in the record that compels the
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conclusion it is more likely than not he would be tortured if returned to China. See
id. at 1156-57. Accordingly, Guo’s CAT claim fails.
Further, the BIA correctly found the record did not show improper conduct
by the IJ in questioning Guo. See 8 C.F.R. § 1003.10(b) (IJ “shall . . . interrogate,
examine, and cross-examine aliens”); 8 C.F.R. § 1003.36 (IJ “shall create and
control the Record of Proceedings”). The BIA also properly rejected Guo’s claim
that his counsel performed poorly because he did not meet the procedural
requirements for an ineffective assistance of counsel claim. See Reyes v. Ashcroft,
358 F.3d 592, 597-98 (9th Cir. 2004) (upholding application of Lozada
requirements where record provided little support for petitioner’s factual
allegations and where petitioner offered no reason for failure to comply).
Accordingly, we reject Guo’s claim that he was denied a meaningful opportunity to
establish his claim. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000)
(requiring error and substantial prejudice to prevail on due process challenge to
immigration proceedings).
Finally, we deny both Guo’s request for oral argument and his request for
attorney’s fees under the Equal Access to Justice Act.
PETITION FOR REVIEW DENIED.
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