                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                        FEB 22 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

XIUSHENG HU,                                    No.    13-72492

                Petitioner,                     Agency No. A089-595-205

 v.
                                                MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,

                Respondent.

                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                          Submitted February 13, 2018**

Before:      LEAVY, FERNANDEZ, and MURGUIA, Circuit Judges.

      Xiusheng Hu, 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 decision denying his application for asylum, withholding of

removal, and relief under the Convention Against Torture (“CAT”). We have

jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the


      *
             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).
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). The agency’s determination that an applicant knowingly

made a frivolous application for asylum is reviewed de novo for compliance with

the procedural framework set forth by the BIA. Kulakchyan v. Holder, 730 F.3d

993, 995 & n.1 (9th Cir. 2013). We deny in part and grant in part the petition for

review, and we remand.

      We do not consider the materials Hu references in his opening brief that are

not part of the administrative record. See Fisher v. INS, 79 F.3d 955, 963-64 (9th

Cir. 1996) (en banc).

      Substantial evidence supports the agency’s determination that the harm Hu

suffered after being arrested by the police in 2007 did not rise to the level of

persecution. See Gu v. Gonzales, 454 F.3d 1014, 1020-21 (9th Cir. 2006) (finding

harm did not rise to the level of persecution where on one occasion petitioner was

detained for three days, beaten, and interrogated). As to his fear of future

persecution, substantial evidence supports the agency’s adverse credibility

determination. See Shrestha, 590 F.3d at 1048 (adverse credibility finding

reasonable under the totality of the circumstances). Hu filed his asylum application

in 2008, but testified that he first learned the police were looking for him in

January 2009. Hu’s explanations do not compel a contrary conclusion. See Lata v.


                                           2                                       13-72492
INS, 204 F.3d 1241, 1245 (9th Cir. 2000). We reject Hu’s contention that the

agency erred by applying the adverse credibility determination to his claim based

on his 2007 police encounter. See Li v. Holder, 738 F.3d 1160, 1163 (9th Cir.

2013) (“The law of this circuit permits the use of the maxim falsus in uno, falsus in

omnibus in the immigration context.”). Substantial evidence also supports the

agency’s determination that Hu otherwise failed to establish a fear of future

persecution based on his religious practice in the United States. See Nagoulko v.

INS, 333 F.3d 1016, 1018 (9th Cir. 2003) (possibility of future persecution “too

speculative”). Thus, we deny the petition for review as to Hu’s asylum claim.

      Because petitioner failed to establish eligibility for asylum, in this case, he

did not establish eligibility for withholding of removal. See Zehatye v. Gonzales,

453 F.3d 1182, 1190 (9th Cir. 2006).

      Substantial evidence also supports the agency’s denial of CAT relief because

Hu failed to show it is more likely than not that he would be tortured by or with the

consent or acquiescence of the government of China. See Aden v. Holder, 589 F.3d

1040, 1047 (2009).

      However, the record does not establish by a preponderance of the evidence

that Hu deliberately fabricated a material element of his asylum application. See

Khadka v. Holder, 618 F.3d 996, 1002 (9th Cir. 2010) (distinguishing between the

standards for adverse credibility determinations and the heightened standards for


                                          3                                     13-72492
frivolous application findings). Thus, we grant the petition for review as to the

frivolousness finding, and remand this case for further proceedings consistent with

this disposition. See INS v. Ventura, 537 U.S. 12, 16-18 (2002) (per curiam).

      Each party shall bear its own costs for this petition for review.

      PETITION FOR REVIEW DENIED in part; GRANTED in part;

REMANDED.




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