                                                                              FILED
                            NOT FOR PUBLICATION                                JUL 27 2011

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


CHI KWO NIAN,                                    No. 07-73247

              Petitioner,                        Agency No. A079-632-933

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

              Respondent.


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

                       Argued and Submitted May 11, 2011
                            San Francisco, California

Before: HUG and PAEZ, Circuit Judges, and WATSON,** District Judge.

       Chi Kwo Nian, 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 (“IJ”) denial of his application for asylum, withholding of

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

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Michael H. Watson, District Judge for the U.S.
District Court for Southern Ohio, Columbus, sitting by designation.
adverse credibility determination under the substantial evidence standard. Don v.

Gonzales, 476 F.3d 738, 741 (9th Cir. 2007). We deny the petition.

      Where the BIA relies upon the IJ’s opinion as a statement of reasons, we

look to the IJ’s decision “as a guide to what lay behind the BIA’s conclusion.”

Kozulin v. INS, 218 F.3d 1112, 1115 (9th Cir. 2000). Because Nian filed his claim

prior to May 11, 2005, pre-REAL ID Act standards apply. See Kaur v. Gonzales,

418 F.3d 1061, 1064 n.1 (9th Cir. 2005).

      Substantial evidence supports the agency’s adverse credibility

determination. Nian’s statements on his asylum application regarding his wife’s

forced implantation of a birth control device were inconsistent with his testimony

before the IJ. This inconsistency goes to the “heart of the claim” because Nian’s

wife’s persecution at the hands of family planning officials is central to his claim.

See Chebchoub v. INS, 257 F.3d 1038, 1043 (9th Cir. 2001). Our deferential

standard of review requires us to uphold the adverse credibility determination. See

Singh v. Gonzales, 439 F.3d 1100, 1108 (9th Cir. 2006) (“A single supported

ground for an adverse credibility finding is sufficient if it relates to the basis for

petitioner’s alleged fear of persecution and goes to the heart of the claim.” (internal

quotation and alteration omitted)).

      In light of the adverse credibility finding, Nian’s withholding of removal


                                            2
claim fails. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003). Because

Nian’s CAT claim is based on the same testimony the agency found not credible,

we deny the petition as to this claim as well. See id. at 1157.

      PETITION FOR REVIEW DENIED.




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