Jinhu Zhao v. Eric Holder, Jr. , 588 F. App'x 547 ( 2014 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT OCT 28 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
JINHU ZHAO, No. 09-73955
Petitioner, Agency No. A099-889-985
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted October 6, 2014
San Francisco, California
Before: O’SCANNLAIN, THOMAS, and McKEOWN, Circuit Judges.
Jinhu Zhao petitions this court to review the Board of Immigration Appeals’
(“BIA”) dismissal of his appeal from the Immigration Judge’s (“IJ”) denial of his
applications for asylum, withholding of removal, and protection under the Convention
Against Torture (“CAT”). We deny the petition in part and dismiss the petition in part.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Because the IJ’s adverse credibility determination, which the BIA adopted, is
supported by substantial evidence, we reject Zhao’s challenge to the adverse
credibility finding. See Jie Cui v. Holder, 712 F.3d 1332, 1336 (9th Cir. 2013). Under
the REAL ID Act, credibility determinations must be made “[c]onsidering the totality
of the circumstances,” and may be based on “all relevant factors.” 8 U.S.C.
§ 1158(b)(1)(B)(iii). Substantial evidence supports one or more of the following
material inconsistencies on which the IJ based her adverse credibility finding: (i)
inconsistencies in the facts of Zhao’s conversion to Christianity, (ii) inconsistencies
in the details of the harm Zhao allegedly received while in detention, (iii)
inconsistencies in Zhao’s statements regarding his livelihood in China, and (iv)
inconsistences regarding Zhao’s religious practice in the United States. The evidence
does not “compel[] a contrary result,” as is required to overturn an IJ’s adverse
credibility determination. Garcia v. Holder, 749 F.3d 785, 789 (9th Cir. 2014)
(citation omitted).
Because Zhao failed to exhaust his due process arguments before the BIA, we
dismiss his petition to review the BIA’s decision as to his due process claims. See Sola
v. Holder, 720 F.3d 1134, 1136 (9th Cir. 2013) (“[C]hallenges to procedural errors
correctable by the administrative tribunal, must be exhausted . . . .” (quoting
Sanchez–Cruz v. INS, 255 F.3d 775, 780 (9th Cir. 2001))). Although an applicant for
2
asylum “need not use precise legal terminology to exhaust his claim” or “provide a
well developed argument to support his claim, . . . he must put the issue . . . before the
BIA such that it had the opportunity to correct its error.” Arsdi v. Holder, 659 F.3d
925, 929 (9th Cir. 2011) (internal quotation marks and citation omitted).
In his brief before the BIA, Zhao asserted that “[t]he IJ reached her decision
with respect of [sic] [Zhao’s] credibility in part upon a preconceived notion that based
on [Zhao’s] inability to articulate key facts, he was not credible,” and that this “led the
IJ to reach an irrational decision as to [Zhao’s] credibility.” This recitation was
insufficient to put the BIA on notice that Zhao intended to make due process
arguments based on bias, improper translation, and an inability to present
corroborating evidence.
DENIED IN PART and DISMISSED IN PART.
3