                                                                           FILED
                            NOT FOR PUBLICATION
                                                                           FEB 19 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


LIAN QIU ZHAO, AKA Qiu Zhoa Lian,                No. 12-72640
AKA Lian Qiu Zhoa,
                                                 Agency No. A098-740-521
              Petitioner,

 v.                                              MEMORANDUM*

LORETTA E. LYNCH, Attorney General,

              Respondent.


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

                     Argued and Submitted February 10, 2016
                            San Francisco, California

Before: SILVERMAN, FISHER, and TALLMAN, Circuit Judges.

      Lian Qui Zhao, a/k/a Lian Qui Zhoa, petitions for review of the Board of

Immigration Appeals’ decision dismissing his appeal from the Immigration

Judge’s order denying his applications for asylum, withholding of removal, and



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
relief under the Convention Against Torture. We have jurisdiction under 8 U.S.C.

§ 1252, and we DENY the petition.

      We review an adverse credibility finding for substantial evidence. Kin v.

Holder, 595 F.3d 1050, 1054 (9th Cir. 2010). We reverse the BIA’s decision only

if the petitioner’s evidence was “so compelling that no reasonable factfinder could

find that he was not credible.” Id. (internal quotation marks omitted) (quoting

Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003)). The substantial evidence

standard is deferential, but the BIA must identify “specific and cogent reasons”

supporting its adverse credibility finding. Id. at 1055. At least one of the reasons

that gave rise to the adverse credibility finding must go to the heart of the asylum

claim. See id.

      Substantial evidence supports the agency’s credibility determination. The

Board’s valid conclusion that Zhao provided vacillating testimony concerning the

circumstances of his departure at what he claimed was “the most dangerous

moment” is substantial evidence for discrediting Zhao’s testimony. The BIA

reasonably determined that Zhao had not credibly established essential facts

relating to his departure from China, because Zhao testified that he had no trouble

leaving China, and that the public security bureau did not stop him, but also that he

did not remember if the public security bureau tried to stop him from getting a


                                           2                                   12-72640
passport, that the public security bureau did attempt to stop him from leaving, and

that he did not go to the public security bureau. Although ideally the IJ would

have directly confronted Zhao with these inconsistencies before relying on them to

arrive at an adverse credibility determination, see Soto-Olarte v. Holder, 555 F.3d

1089, 1092 (9th Cir. 2009), we conclude Zhao was given a minimally adequate

opportunity to explain the inconsistencies in light of the repeated questions on this

issue, see Garcia v. Holder, 749 F.3d 785, 790 (9th Cir. 2014). The events

leading up to Zhao’s departure are at the heart of his claim for asylum, because

Zhao applied for relief alleging that he left as the deadline approached for his

compliance with the terms of his conditional release from jail. See Zamanov v.

Holder, 649 F.3d 969, 973 (9th Cir. 2011) (“Testimony about the events leading up

to the petitioner’s departure, or about the circumstances that led to the persecution,

go to the ‘heart of the claim.’”) (citing Chebchoub v. I.N.S., 257 F.3d 1038, 1043

(9th Cir. 2001); Don v. Gonzales, 476 F.3d 738, 741 (9th Cir.2007)).

      The IJ additionally found that Zhao’s long pauses and puzzled looks

supported an adverse credibility finding. The IJ’s demeanor finding is entitled to

special deference. Kin, 595 F.3d at 1056. The BIA endorsed this demeanor

determination, and we agree that it provides substantial evidence in support of the

overall credibility finding because the IJ has provided specific examples of Zhao’s


                                           3                                       12-72640
demeanor which the IJ noted on the record, and which caused the IJ to question

Zhao’s credibility. See id.

       Because we do not find that “any reasonable adjudicator would be

compelled to conclude to the contrary,” we do not disturb the agency’s credibility

finding. Rizk v. Holder, 629 F.3d 1083, 1087 (9th Cir. 2011). In the absence of

credible testimony, Zhao necessarily failed to carry his burden of proving past

persecution, a well-founded fear of future persecution, or a clear probability of

future persecution. See Madrigal v. Holder, 716 F.3d 499, 503 (9th Cir. 2013)

(asylum requires establishing either past persecution or a well-founded fear of

future persecution); Viridiana v. Holder, 646 F.3d 1230, 1239 (9th Cir. 2011)

(withholding of removal requires establishing either past persecution or a clear

probability of future persecution).

      Although “[a]n adverse credibility determination is not necessarily a death

knell to CAT protection,” Shrestha v. Holder, 590 F.3d 1034, 1048 (9th Cir. 2010),

the Board did not err in concluding that Zhao failed to sustain his burden to show

eligibility for relief under CAT. See 8 C.F.R. § 1208.16(c)(2); Maldonado v.

Lynch, 786 F.3d 1155, 1164 (9th Cir. 2015) (en banc) (“Section 1208.16(c)(2)

provides that an applicant for deferral of removal must demonstrate that it is more

likely than not that he or she will be tortured if removed.”).


                                           4                                   12-72640
PETITION FOR REVIEW DENIED.




                       5      12-72640
