Yingjie Li v. ERIC H. HOLDER, Jr., Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
YINGJIE LI,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 12-72337
Agency No. A099-903-382
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 9, 2014**
Before: WALLACE, LEAVY, and BYBEE, Circuit Judges.
Yingjie Li, a native and citizen of China, petitions pro se for review of the
Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from the
immigration judge’s decision (“IJ”) denying his application for asylum, withholding
of removal, and protection under the Convention Against Torture. Our jurisdiction
* 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).
FILED
DEC 16 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 3 --

2 12-72337
is governed by 8 U.S.C. § 1252. We review for substantial evidence the agency’s
factual findings, applying the standards created by the REAL ID Act governing
adverse credibility determinations. Shrestha v. Holder, 590 F.3d 1034, 1039-40
(9th Cir. 2010). We review de novo claims of due process violations. Simeonov v.
Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004). We dismiss in part and deny in part the
petition for review.
We lack jurisdiction to consider Li’s claim that the IJ violated his rights to
due process by not allowing him to present his proposed witness because Li did not
exhaust this claim before the BIA. Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th
Cir. 2004). We reject Li’s contention that the IJ violated his due process rights by
prejudging Li’s claim of future fear. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.
2000) (petitioner must show error and prejudice to establish a due process violation).
Substantial evidence supports the agency’s adverse credibility determination
based on inconsistencies between Li’s testimony, statement, and supporting
documents regarding the year his wife was forced to have an abortion, and the month
Li was laid off. See id. at 1048 (adverse credibility finding reasonable under the
totality of the circumstances). In the absence of credible testimony, Li’s asylum
and withholding of removal claims fail. See Farah v. Ashcroft, 348 F.3d 1153,

-- 2 of 3 --

3 12-72337
1156 (9th Cir. 2003).
Finally, Li’s CAT claim fails because it is based on the same testimony the
agency found not credible, and Li does not point to any other evidence in the record
that compels the conclusion that it is more likely than not he would be tortured by or
with the consent of a public official in China. See id. at 1156-57.
PETITION FOR REVIEW DISMISSED in part; DENIED in part.

-- 3 of 3 --