Fu Li v. Eric Holder, Jr.

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-2032 FU LI, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent.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 Petition denied by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 immigration asylum, Appeals judge's ("Board") decision of dismissing denying and his his appeal from the for the applications under withholding removal, withholding Convention Against Torture ("CAT"). review. The Immigration and We deny the petition for Nationality Act authorizes the Attorney General to confer asylum on any refugee. § 1158(a) (2006). 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 opinion." involves the 8 U.S.C. § 1101(a)(42)(A) or threat of (2006). death, "Persecution infliction 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). establish ground. 2004). evidence. Without a regard to fear past of 8 C.F.R. § 1208.13(b)(1) persecution, persecution F.3d 182, an on a alien can well-founded v. protected (4th Cir. Ngarurih Ashcroft, findings 371 are 187 Credibility reviewed for 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 evidence, and inherently improbable testimony . . . ." 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 U.S.C. of fact § 1158(b)(1)(B)(iii) may base a (2006). Specifically, on "a the trier credibility determination 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 evidence. 2004). A to court accords broad, though not by 367 for unlimited, substantial (4th Cir. or credibility v. findings 378 supported F.3d 361, Camara Ashcroft, determination regarding eligibility asylum 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 the petition the for facts review. and We legal argument because contentions are adequately presented in the materials before the court and argument would not aid the decisional process. PETITION DENIED 5