Dong Ye-Wan v. Merrick Garland ( 2023 )


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  •                               NOT FOR PUBLICATION                        FILED
    UNITED STATES COURT OF APPEALS                         JAN 23 2023
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    DONG YE-WAN, AKA Wandong Ye,                     No.   17-72855
    Petitioner,                      Agency No. A087-455-726
    v.
    MEMORANDUM*
    MERRICK B. GARLAND, Attorney
    General,
    Respondent.
    On Petition for Review of an Order of the
    Board of Immigration Appeals
    Submitted January 18, 2023**
    Before:      GRABER, PAEZ, and NGUYEN, Circuit Judges.
    Dong Ye-Wan, a native and citizen of China, petitions pro se for review of
    the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
    immigration judge’s (“IJ”) decision denying his applications 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 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).
    (“CAT”). Our jurisdiction is governed by 
    8 U.S.C. § 1252
    . We review factual
    findings for substantial evidence, 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 in part and dismiss in part the petition for
    review.
    Substantial evidence supports the BIA’s adverse credibility determination
    based on inconsistencies regarding whether Ye-Wan’s wife was sterilized, the
    amount of the fines Ye-Wan paid, when he learned of his wife’s pregnancy, and
    his wife’s location when family planning officials visited their home on December
    6, 2008. See 
    id. at 1048
     (adverse credibility determination reasonable under “the
    totality of circumstances”). Ye-Wan’s explanations do not compel a contrary
    conclusion. See Lata v. INS, 
    204 F.3d 1241
    , 1245 (9th Cir. 2000). Thus, in the
    absence of credible testimony in this case, Ye-Wan’s asylum and withholding of
    removal claims fail. See Farah v. Ashcroft, 
    348 F.3d 1153
    , 1156 (9th Cir. 2003).
    We do not consider Ye-Wan’s remaining contentions regarding the merits of
    his claims because the BIA did not decide them. See Santiago-Rodriguez v.
    Holder, 
    657 F.3d 820
    , 829 (9th Cir. 2011) (review limited to the grounds relied on
    by the BIA).
    Substantial evidence also supports the denial of Ye-Wan’s CAT claim
    because it was based on the same evidence found not credible, and Ye-Wan does
    2                                    17-72855
    not 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
    .
    To the extent Ye-Wan contends that the IJ violated his right to due process,
    we lack jurisdiction to consider it because he did not raise this claim before the
    BIA. See Barron v. Ashcroft, 
    358 F.3d 674
    , 677-78 (9th Cir. 2004) (petitioner
    must exhaust issues or claims in administrative proceedings below).
    The temporary stay of removal remains in place until the mandate issues.
    PETITION FOR REVIEW DENIED in part; DISMISSED in part.
    3                                    17-72855