Fu Li v. Eric Holder, Jr., No. 08-2032 (4th Cir. 2009)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-2032 FU LI, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Submitted: March 19, 2009 Decided: April 10, 2009 Before MICHAEL, GREGORY, and DUNCAN, Circuit Judges. Petition denied by unpublished per curiam opinion. Norman Kwai Wing Wong, New York, New York, for Petitioner. Michael F. Hertz, Acting Assistant Attorney General, William C. Peachey, Assistant Director, Rebecca Hoffberg, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Fu Li, a native and citizen of the People s Republic of China, petitions for review of an order of the Board of Immigration Appeals immigration asylum, ( Board ) judge s dismissing decision withholding of denying removal, and Convention Against Torture ( CAT ). his his appeal from applications withholding the for under the We deny the petition for review. The Immigration and Nationality Act authorizes Attorney General to confer asylum on any refugee. § 1158(a) (2006). the 8 U.S.C. It defines a refugee as a person unwilling or unable to return to his native country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political Persecution opinion. involves 8 the U.S.C. § infliction 1101(a)(42)(A) or threat of (2006). death, torture, or injury to one s person or freedom, on account of one of the enumerated grounds . . . . Li v. Gonzales, 405 F.3d 171, 177 (4th Cir. 2005) (internal quotation marks and citations omitted). An alien bear[s] the burden of proving eligibility for asylum, Naizgi v. Gonzales, 455 F.3d 484, 486 (4th Cir. 2006); see 8 C.F.R. § 1208.13(a) (2008), and can establish refugee status based on past persecution in his native country 2 on account of a protected ground. (2008). Without establish a ground. Ngarurih 2004). Credibility evidence. regard well-founded v. to past fear of Ashcroft, findings 8 C.F.R. § 1208.13(b)(1) persecution, persecution 371 are F.3d an on 182, reviewed alien a 187 protected (4th for can Cir. substantial A trier of fact who rejects an applicant s testimony on credibility grounds must offer specific, cogent reason[s] for doing so. Figeroa v. INS, 886 F.2d 76, 78 (4th Cir. 1989). Examples of specific and cogent reasons include inconsistent statements, contradictory testimony . . . . evidence, and inherently improbable Tewabe v. Gonzales, 446 F.3d 533, 538 (4th Cir. 2006) (internal quotation marks and citations omitted). Where, as here, the applicant filed his application for asylum after May 11, 2005, certain provisions of the REAL ID Act of 2005 regarding credibility determinations are applicable. See 8 trier U.S.C. of § fact 1158(b)(1)(B)(iii) may base a (2006). credibility Specifically, determination on a the demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the applicant s or witness s account, the consistency between the applicant s or witness s written and oral statements (whenever made and whether or not under oath, and considering the circumstances under which the statements were made), the internal consistency of each such statement, the consistency of 3 such statements with other evidence of record (including the reports of the Department of State on country conditions), and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant s claim, or any other relevant factor. 8 U.S.C. § 1158(b)(1)(B)(iii). This deference to evidence. 2004). court credibility Camara A accords v. broad, findings Ashcroft, determination 378 regarding though supported F.3d not unlimited, by substantial 361, 367 (4th Cir. eligibility for asylum or withholding of removal is affirmed if supported by substantial evidence on the record considered as a whole. Zacarias, 502 U.S. 478, 481 (1992). INS v. Elias Administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to decide to the contrary. (2006). 8 U.S.C. § 1252(b)(4)(B) This court will reverse the Board only if the evidence . . . presented was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution. Elias Zacarias, 502 U.S. at 483-84; see Rusu v. INS, 296 F.3d 316, 325 n.14 (4th Cir. 2002). We find substantial evidence supports the Board s and the immigration judge s finding that Li was not credible with respect to his membership in Falun Gong. Thus, he failed to establish past persecution or a well-founded fear of persecution 4 based on a protected ground. We further find substantial evidence supports the finding that Li did not show it is more likely than not he will be tortured when he returns to China as a result of having left the country illegally. Accordingly, dispense with oral we deny argument the petition because the for facts review. and We legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. PETITION DENIED 5

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