Xiaoying Xian v. LORETTA E. LYNCH, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
XIAOYING XIAN,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
Nos. 12-73897
13-70746
13-71430
Agency No. A088-294-525
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 13, 2016**
Before: FARRIS, TALLMAN, and BYBEE, Circuit Judges.
Xiaoying Xian, a native and citizen of China, petitions pro se for review of
the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from an
immigration judge’s (“IJ”) decision denying her 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).
FILED
APR 26 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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(“CAT”) (petition No. 12-73897), and of the BIA’s subsequent denials of her
motions to reconsider and reopen removal proceedings (petitions No. 13-70746
and No. 13-71430). Our jurisdiction is governed by 8 U.S.C. § 1252. We review
for substantial evidence the agency’s factual findings, applying the standards
governing adverse credibility determinations created by the REAL ID Act,
Shrestha v. Holder, 590 F.3d 1034, 1039-40 (9th Cir. 2010), and we review for
abuse of discretion the denials of motions to reconsider and motions to reopen,
Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir. 2002). We deny the petitions for
review in Nos. 12-73897 and 13-70746, and we dismiss the petition for review in
No. 13-71430.
Substantial evidence supports the agency’s determination that Xian failed to
establish an exception excusing her untimely asylum application, which was filed
more than a year after she turned 18. See 8 C.F.R. §§ 1208.4(a)(4), (5); see also
Toj-Culpatan v. Holder, 612 F.3d 1088, 1091-92 (9th Cir. 2010). Thus, her
asylum claim fails.
Substantial evidence also supports the agency’s adverse credibility
determination based on an inconsistency between Xian’s testimony and
documentary evidence regarding the date she was baptized. See Shrestha, 590

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3 13-70746
F.3d at 1048 (“adverse credibility finding reasonable under the totality of the
circumstances”). In the absence of credible testimony, Xian’s withholding of
removal claim fails. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).
Xian’s CAT claim fails because it is based on the same testimony the agency
found not credible, and Xian does not point to any other evidence in the record that
compels the conclusion that it is more likely than not she would be tortured by or
with the consent or acquiescence of a public official in China. See id. at 1156-57.
Thus, we deny the petition for review in No. 12-73897.
The BIA did not abuse its discretion in denying Xian’s motion to reconsider,
where the motion failed to identify any error of fact or law in the BIA’s prior
decision dismissing her appeal. See 8 C.F.R. § 1003.2(b)(1) (a motion to
reconsider must specify errors of fact or law in a prior decision); see also
Iturribarria v. INS, 321 F.3d 889, 895 (9th Cir. 2003). Thus, we deny the petition
for review in No. 13-70746.
Finally, we lack jurisdiction to review Xian’s challenge to the BIA’s March
20, 2013, order denying Xian’s motion to reopen because she did not timely file a
petition for review of that order. See Stone v. INS, 514 U.S. 386, 405 (1995)
(deadline for filing a petition for review from a final order of removal is

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“mandatory and jurisdictional”). Thus, we dismiss the petition for review in
No. 13-71430.
No. 12-73897, 13-70746: PETITIONS FOR REVIEW DENIED.
No. 13-71430: PETITION FOR REVIEW DISMISSED.

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