Jiuyun Cui v. Merrick B. Garland, U.S. Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Jiuyun Cui,
Petitioner,
v.
Merrick B. Garland, U.S. Attorney
General,
Respondent.
No. 22-113
Agency No. A205-188-223
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 15, 2023**
San Francisco, California
Before: S.R. THOMAS, MILLER, SANCHEZ, Circuit Judges.
Jiuyin Cui, a native and citizen of China, petitions for review of a Board of
Immigration Appeals (“BIA”) decision denying his appeal from an immigration
judge’s (“IJ”) decision denying Cui relief under the Convention Against Torture
FILED
FEB 17 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).
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(“CAT”). We have jurisdiction pursuant to 8 U.S.C. § 1252. Where, as here, the
BIA both conducted its own analysis and affirmed the IJ’s reasoning on the
relevant issues, we review both decisions. Hosseini v. Gonzales, 471 F.3d 953,
957 (9th Cir. 2006). We review an IJ or BIA decision that a petitioner failed to
establish eligibility for CAT for substantial evidence, upholding the decision unless
“the evidence in the record compels a contrary conclusion.” Velasquez-Samayoa v.
Garland, 49 F.4th 1149, 1154 (9th Cir. 2022). We review due process challenges
to immigration proceedings de novo. Zetino v. Holder, 622 F.3d 1007, 1011 (9th
Cir. 2010). Because the parties are familiar with the factual and procedural history
of the case, we discuss them only as necessary. We deny the petition for review.
I
The BIA did not err in concluding that the IJ acted within his discretion in
excluding the proposed expert’s testimony and did not violate Cui’s due process
rights. In his petition for review, Cui concedes that because his counsel decided
not to present the expert testimony, his due process rights were not violated. Our
review of the record independently confirms that the proceedings were not “so
fundamentally unfair that the alien was prevented from reasonably presenting his
case.” Torres–Aguilar v. I.N.S., 246 F.3d 1267, 1270 (9th Cir. 2001). Therefore,
the BIA correctly concluded that Cui’s due process rights were not violated.
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Cui claims that it was error for the BIA and IJ to disregard the expert
testimony despite counsel’s apparent withdrawal of the witness. However, the BIA
properly concluded that the IJ acted within his discretion in excluding the
testimony because the witness was unqualified to give expert testimony on the
Chinese government’s torture of individuals in criminal detention. Cui did not
show that his expert’s testimony would be “‘based on sufficient facts or data’ that
the expert ‘ha[d] been made aware of or personally observed’ or from sources that
‘experts in the particular field would reasonably rely on.’” Matter of J-G-T-, 28 I.
& N. Dec. 97, 102 (BIA 2020) (quoting Fed. R. Evid. 702(b), 703). The proposed
testimony did not indicate that the witness’s prosecuted clients had been tortured in
China nor that the witness had researched or written about the Chinese
government’s use of torture in connection with criminal prosecution.
Therefore, there was no error in the exclusion of the expert witness
testimony or the IJ’s subsequent decision to exclude the expert’s report. The
record establishes that both the IJ and the BIA properly gave “reasoned
consideration” to the proposed evidence. Cole v. Holder, 659 F.3d 762, 772 (9th
Cir. 2011). Accordingly, we must deny the claim.
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II
The BIA did not err in affirming the IJ’s denial of CAT relief. The BIA and
the IJ carefully considered the Department of State Country Report on Human
Rights Practices in China and Cui’s testimony. Substantial evidence supports the
BIA’s conclusion that Cui had not met his burden of establishing that he would
more likely than not be tortured if he returned to China. 8 C.F.R. § 1208.16(c)(2).
PETITION DENIED.
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