Opinion
17-70613
10-31-2022
JING XIN XIAO, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
Submitted October 14, 2022 [**] Honolulu, Hawaii
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A200-574-871
Before: SCHROEDER, RAWLINSON, and BRESS, Circuit Judges.
MEMORANDUM [*]
Jing Xin Xiao (Xiao), a native and citizen of China, petitions for review of a decision of the Board of Immigration Appeals (BIA) dismissing his appeal of the denial of deferral of removal under the Convention Against Torture (CAT).
"[T]he BIA's construction and application of the law" is reviewed de novo. Doe v. Holder, 736 F.3d 871, 877 (9th Cir. 2013) (citation omitted). The factual findings underlying the BIA's determination of eligibility for deferral of removal under the CAT are reviewed for substantial evidence. See Velasquez-Samayoa v. Garland, 49 F.4th 1149, 1154 (9th Cir. 2022), as amended.
The BIA correctly applied the "more likely than not" legal standard when determining whether Xiao was eligible for deferral of removal under the CAT. Xiao's proffered "substantial grounds" standard is essentially the same as the "more likely than not" standard, applied by the BIA. See Nuru v. Gonzales, 404 F.3d 1207, 1216 (9th Cir. 2005); see also Edu v. Holder, 624 F.3d 1137, 1144-45 (9th Cir. 2010).
On the merits, substantial evidence supports the BIA's determination that Xiao was not eligible for deferral of removal under the CAT. See Plancarte Sauceda v. Garland, 23 F.4th 824, 834 (9th Cir. 2022), as amended (explaining that an individual seeking CAT relief must show that he would be tortured "by, . . . or with the consent or acquiescence of, a public official"). Xiao's fear of torture rested on a "chain of assumptions" rather than on conclusive evidence. See Rodriguez-Jimenez v. Garland, 20 F.4th 434, 440 (9th Cir. 2021).
PETITION DENIED.
[*] 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).