Ruo Wu v. Eric Holder, Jr., No. 09-1155 (4th Cir. 2010)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-1155 RUO MEI WU, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Submitted: March 18, 2010 Decided: April 9, 2010 Before NIEMEYER, MOTZ, and DUNCAN, Circuit Judges. Petition denied by unpublished per curiam opinion. John E. Gallagher, Catonsville, Maryland, for Petitioner. Tony West, Assistant Attorney General, James E. Grimes, Senior Litigation Counsel, Gregory M. Kelch, 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 Unpublished opinions are not binding precedent in this circuit.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: Ruo Mei Wu, a native and citizen of the People s Republic of China, petitions for review of an order of the Board of Immigration Appeals ( Board ) dismissing her appeal from the immigration judge s order denying her applications for asylum, withholding from removal and withholding under the Convention Against Torture ( CAT ). Finding substantial evidence supports the adverse credibility finding and the record does not compel a different result, we deny the petition for review. The Immigration and Nationality Act ( INA ) authorizes the Attorney General to confer asylum on any refugee. § 1158(a), (b) (2006). It defines a refugee as 8 U.S.C. 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. Persecution involves the 8 U.S.C. § 1101(a)(42)(A) (2006). infliction or threat of 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) 2 (2009), and can establish refugee status based on past persecution in his native country on account of a protected ground. (2009). 8 C.F.R. § 1208.13(b)(1) An applicant who demonstrates that he was the subject of past persecution is presumed to have a well-founded fear of persecution. 2004). establish ground. of past Ngarurih v. Ashcroft, 371 F.3d 182, 187 (4th Cir. Without a Id. regard to well-founded past fear of persecution, persecution an on alien a can protected A well-founded fear of persecution in the absence persecution has both subjective and objective components, meaning that the applicant is subjectively afraid and that the fear is objectively well-founded. A claim based on past persecution, however, does not require the applicant to show he or she subjectively fears persecution in the country of origin. Lin-Jian v. Gonzales, 489 F.3d 182, 188 (4th Cir. 2007) (internal quotation marks and citation omitted). Withholding of removal is available under 8 U.S.C. § 1231(b)(3) if the alien shows that it is more likely than not that her life or freedom would be threatened in the country of removal because of her race, religion, nationality, membership in a particular social group, or political opinion. Gomis v. Holder, 571 F.3d 353, 359 (4th Cir. 2009), cert. denied, 130 S. Ct. 1048 (2010). This is a more stringent standard than that for asylum . . . . [and], while asylum is discretionary, if an alien establishes eligibility for withholding of removal, the 3 grant is mandatory. 351, 353-54 (4th Gandziami-Mickhou v. Gonzales, 445 F.3d Cir. 2006) (internal citations omitted) (alteration added). Credibility evidence. findings are reviewed for substantial A trier of fact who rejects an applicant s testimony on credibility grounds must offer a specific, cogent reason for doing so. Figeroa v. INS, 886 F.2d 76, 78 (4th Cir. 1989) (internal quotation marks omitted). Examples of specific and cogent statements, reasons evidence, and include inconsistent inherently improbable contradictory testimony[.] Tewabe v. Gonzales, 446 F.3d 533, 538 (4th Cir. 2006) (internal quotation marks and citations omitted). cannot reasons reject why documentary the Likewise, the immigration judge evidence documents are without not specific, credible. cogent Kourouma v. Holder, 588 F.3d 234, 241 (4th Cir. 2009). This deference to evidence. 2004). court accords credibility Camara v. broad, findings Ashcroft, 378 though supported F.3d 361, not unlimited, by substantial 367 (4th Cir. If the immigration judge s adverse credibility finding is based on speculation and conjecture rather than specific and cogent reasoning, however, it is not supported by substantial evidence. Tewabe, 446 F.3d at 538. A determination regarding eligibility for asylum or withholding of removal is affirmed if supported by substantial 4 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). Because the Board added its own reasoning when it adopted the immigration judge s decision, this court will review both decisions. Niang v. Gonzales, 492 F.3d 505, 511 n.8 (4th Cir. 2007). We find substantial evidence supports the adverse credibility finding as it related to the subjective component of Wu s claim that she had a well-founded fear of persecution. addition, finding we that find Wu substantial did not evidence show any supports likelihood the that In Board s she or similarly situated Chinese will be persecuted in Fujian Province as a result of the birth of children in the United States. We will not review Wu s claim that the immigration judge s finding that her statements made during the 2001 credible fear interview were not made under duress or under an immediate fear was without support in the record because she did not raise this claim on appeal to the Board. See Massis v. Mukasey, 549 F.3d 5 631, 638, 640 (4th Cir. 2008), cert. denied, 130 S. Ct. 736 (2009). We also note Wu does not challenge the denial of relief under the CAT, which was determined notwithstanding the adverse credibility finding. Therefore, the claim is abandoned. See Yousefi v. INS, 260 F.3d 318, 326 (4th Cir. 2001). 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 6

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