                                                                             FILED
                               NOT FOR PUBLICATION                           JUN 22 2016

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



                               FOR THE NINTH CIRCUIT


XUEJUN ZHAO,                                      No. 09-73930

                 Petitioner,                      Agency No. A099-706-871

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

                 Respondent.


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

                               Submitted June 14, 2016**

Before:          BEA, WATFORD, and FRIEDLAND, Circuit Judges.

        The stay in these proceedings expired on January 11, 2016. Thus,

respondent’s motion to end the abeyance period (Docket Entry No. 35) is denied as

moot.

        Xuejun Zhao, a native and citizen of China, petitions pro se for review of the


             *
             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).
Board of Immigration Appeals’ 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”). We have jurisdiction

under 8 U.S.C. § 1252. We review for substantial evidence the agency’s factual

findings, applying the standards created by the REAL ID Act. Shrestha v. Holder,

590 F.3d 1034, 1039-40 (9th Cir. 2010). We deny in part and grant in part the

petition for review, and we remand.

      Substantial evidence supports the agency’s denial of Zhao’s CAT claim

because Zhao failed to establish it is more likely than not he would be tortured by

or with the consent or acquiescence of the government if returned to China. See

Silaya v. Mukasey, 524 F.3d 1066, 1073 (9th Cir. 2008). Thus, we deny the

petition for review as to Zhao’s CAT claim.

      As to Zhao’s family planning claim, substantial evidence supports the

agency’s adverse credibility determination based on the inconsistency between

Zhao’s statements and his documentary evidence regarding his wife’s abortion.

See Shrestha, 590 F.3d 1034 at 1048; Goel v. Gonzales, 490 F.3d 735, 739 (9th

Cir. 2007) (inconsistencies between testimony and documentary evidence

supported adverse credibility determination). In the absence of credible testimony,

Zhao’s asylum and withholding of removal claims based on China’s family


                                          2                                   09-73930
planning policy fail. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).

      As to Zhao’s whistleblowing claim, substantial evidence does not support

the agency’s conclusion that Zhao failed to establish one central reason for his

mistreatment by Chinese authorities was his actual or imputed political opinion.

See Hu v. Holder, 652 F.3d 1011, 1018-20 (9th Cir. 2011). Thus, we grant the

petition for review, and remand Zhao’s asylum and withholding of removal claims

based on whistleblowing to the agency 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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