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Nai Wei Jiang v. Mukasey
Citation: 310 F. App'x 116Docket: No. 05-72719
Court: Court of Appeals for the Ninth Circuit; January 20, 2009; Federal Appellate Court
Nai Wei Jiang, a native and citizen of China, petitions for review of a Board of Immigration Appeals (BIA) order that dismissed his appeal from an immigration judge’s (IJ) denial of his asylum application, withholding of removal, and relief under the Convention Against Torture (CAT). Jurisdiction is based on 8 U.S.C. § 1252, with factual findings, including credibility determinations, reviewed for substantial evidence, while legal questions are reviewed de novo. The court partly dismisses and partly denies Jiang's petition. The IJ’s adverse credibility determination is supported by substantial evidence, notably Jiang's failure to disclose an attempted police arrest in his asylum application, which is a material omission impacting his claim. His explanation for this omission was also inconsistent. Consequently, Jiang's inability to establish eligibility for asylum undermines his claim for withholding of removal, as established in precedent. Jiang's CAT claim fails as it relies on the same evidence deemed not credible by the IJ, and he did not present additional evidence regarding the likelihood of torture upon return to China. The court rejects Jiang's assertion that the BIA violated his due process rights by not conducting an independent review of his CAT claim, noting that an error must be shown to establish such a violation. Furthermore, the court lacks jurisdiction over Jiang's claim that the IJ violated his due process rights by not separately considering his CAT claim, as this argument was not exhausted before the BIA. The petition for review is dismissed in part and denied in part. The ruling is not suitable for publication and does not serve as precedent except as specified by 9th Cir. R. 36-3.