YUMIN XUAN v. WHITAKER (2018)

MEMORANDUM **

Yumin Xuan, a native and citizen of China, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from the immigration judge’s (“IJ”) decision denying her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence the agency’s factual findings. Chebchoub v. INS, 257 F.3d 1038, 1042 (9th Cir. 2001). We dismiss in part and deny in part the petition for review.

The agency found that Xuan did not establish changed circumstances to excuse her untimely asylum application. We lack jurisdiction to review this finding because the underlying facts are disputed. See Gasparyan v. Holder, 707 F.3d 1130, 1134 (9th Cir. 2013). Thus, we dismiss the petition for review as to Xuan’s asylum claim.

We also lack jurisdiction to review Xuan’s contention regarding her CAT claim because she failed to raise it to the BIA. See Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010) (the court lacks jurisdiction to consider legal claims not presented in an alien’s administrative proceedings before the agency).

Substantial evidence supports the agency’s pre-REAL ID Act adverse credibility determination based on inconsistencies within Xuan’s testimony and between Xuan’s testimony and documentary evidence as to the date of her father’s arrest and the date of her separation from her husband. See Li v. Ashcroft, 378 F.3d 959, 964 (9th Cir. 2004) (“[s]o long as one of the identified grounds is supported by substantial evidence and goes to the heart of [an applicant’s] claim of persecution, we are bound to accept the IJ’s adverse credibility finding” (citation omitted) ). Thus, in the absence of credible testimony, in this case, Xuan’s withholding of removal claim fails. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).

PETITION FOR REVIEW DISMISSED in part; DENIED in part.