Nabi Nabil v. Eric Holder, Jr., No. 09-2292 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-2292 NABI NABIL, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Submitted: August 6, 2010 Decided: August 23, 2010 Before MOTZ, DUNCAN, and KEENAN, Circuit Judges. Petition denied by unpublished per curiam opinion. Jay S. Marks, MARKS, CALDERON, DERWIN & RACINE, P.L.C., Arlington, Virginia, for Petitioner. Tony West, Assistant Attorney General, Ada E. Bosque, Senior Litigation Counsel, Jonathan Robbins, 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 Unpublished opinions are not binding precedent in this circuit.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: Nabi petitions Nabil, a native and for review an order of Appeals ( Board ) judge s order removal and ( CAT ). dismissing denying his withholding his citizen the appeal the Afghanistan, Board of Immigration from the immigration applications under of for Convention withholding Against of Torture We deny the petition for review. Nabil challenges the adverse credibility finding. 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) (internal quotation marks omitted), cert. denied, 130 S. Ct. 1048 (2010). [I]f an alien establishes eligibility for withholding of removal, the grant is mandatory. Gandziami-Mickhou v. Gonzales, 445 F.3d 351, 353-54 (4th Cir. 2006) (alteration added). For applications filed after the passage of the REAL ID Act of 2005, a trier of fact, [c]onsidering the totality of the circumstances, and all relevant factors, may base a credibility determination on any inconsistency, inaccuracy, or falsehood without regard to whether [it] goes to the heart of the applicant s claim[.] 8 U.S.C. § 1158(b)(1)(B)(iii) (2006) 2 (alterations added). [I]n evaluating an asylum applicant s credibility, an IJ may rely on omissions and inconsistencies that do not persecution as directly long relate as the to the totality applicant s of the establish that the applicant is not credible. claim of circumstances Lin v. Mukasey, 534 F.3d 162, 164 (2d Cir. 2008); see also Mitondo v. Mukasey, 523 F.3d statute 784, 787-88 abrogates (7th Cir. decisions 2008) that (noting focus that on the new whether the inconsistency or omission goes to the heart of the applicant s claim for relief). 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 omitted). This deference evidence. 2004). to 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 3 cogent reasoning, however, it is not supported by substantial evidence. Tewabe, 446 F.3d at 538. A determination regarding eligibility for withholding of removal is affirmed if supported by substantial evidence on the record considered as a whole. U.S. 478, 481 (1992). INS v. Elias-Zacarias, 502 Administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to decide to the contrary. 8 U.S.C. § 1252(b)(4)(B) (2006). We 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 (alteration added); see Rusu v. INS, 296 F.3d 316, 325 n.14 (4th Cir. 2002). We hold that substantial evidence supports the adverse credibility finding. The immigration judge and the Board made note of specific and cogent reasons that cast doubt on Nabil s claim that he converted application for relief substantial evidence to Christianity. depended supports upon the his denial Because alleged of Nabil s conversion, withholding of removal and the record does not compel a different result. Because Nabil s claim that he converted to Christianity was not to believed due to the adverse credibility finding, and because he did not submit sufficient independent evidence that could stand on its own and overcome the adverse 4 credibility finding, we hold that substantial evidence supports the finding that Nabil failed to show it was more likely than not he will be tortured if he returns to his native country. See 8 C.F.R. § 1208.16(c)(2) (2010). 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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