JIE ZHEN V. ERIC HOLDER, JR., No. 12-71868 (9th Cir. 2014)

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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT OCT 20 2014 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS JIE LI ZHEN, No. 12-71868 Petitioner, Agency No. A088-459-745 v. MEMORANDUM* ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted October 14, 2014** Before: LEAVY, GOULD, and BERZON, Circuit Judges. Jie Li Zhen, a native and citizen of China, petitions for review of the Board of Immigration Appeals ( BIA ) order dismissing his appeal from an immigration judge s decision denying his application for asylum, withholding of removal, and protection under the Convention Against Torture ( CAT ). Our jurisdiction is * 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). 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). We deny in part and dismiss in part the petition for review. Substantial evidence supports the BIA s adverse credibility determination, based on the inconsistencies between Zhen s testimony and his asylum application regarding whether he was ever arrested, detained, and beaten by the police in China. See id. at 1046-47 ( Although insistencies no longer need to go to the heart of the petitioner s claim, when an inconsistency is at the heart of the claim it doubtless is of great weight. ). We lack jurisdiction to consider Zhen s contentions made for the first time in his opening brief that he may not have been familiar with the content of his declaration or that it may have been mis-translated. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks jurisdiction to consider issues that have not been exhausted administratively). In the absence of credible testimony, Zhen s asylum and withholding of removal claims fail. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003). Zhen s CAT claim also fails because it is based on the same testimony the BIA found not credible, and the record does not otherwise compel the conclusion 2 12-71868 that it is more likely than not that he will be tortured if returned to China. See id. at 1156-57. PETITION FOR REVIEW DENIED in part; DISMISSED in part. 3 12-71868

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