Sidwisbert Bango Sangafio v. Eric Holder, Jr., No. 09-2163 (4th Cir. 2010)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-2163 SIDWISBERT BANGO SANGAFIO, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Submitted: March 25, 2010 Decided: May 14, 2010 Before MICHAEL 1 and DAVIS, Circuit Judges, and HAMILTON, Senior Circuit Judge. Petition denied by unpublished per curiam opinion. Robert A. Remes, CARLINER & REMES, P.C., Washington, D.C., for Petitioner. Tony West, Assistant Attorney General, David V. Bernal, Assistant Director, Yedidya Cohen, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. 1 Judge Michael was a member of the original panel but did not participate in this decision. This opinion is filed by a quorum of the panel pursuant to 28 U.S.C. § 46(d). Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Sidwisbert Bango Sangafio, a native and citizen of the Central African Republic ( CAR ), petitions for review of an order of the Board of Immigration Appeals ( Board ) dismissing his appeal from applications the for immigration asylum, judge s withholding order from denying removal his and withholding under the Convention Against Torture ( CAT ). We deny the petition for review. 2 Insofar extraordinary which to as Sangafio circumstances file an asylum claims excusing the application that one because he year of showed period his in lawful status, we note he failed to exhaust this claim because he did not raise it before the Board on appeal. without jurisdiction to consider the Accordingly, we are claim. See 8 U.S.C. § 1252(d)(1) (2006); Massis v. Mukasey, 549 F.3d 631, 638 (4th Cir. 2008), cert. denied, 130 S. Ct. 736 (2009); Asika v. Ashcroft, 362 F.3d 264, 267 n.3 (4th Cir. 2004). 2 In his brief, Sangafio does not challenge the Board s decision dismissing the appeal from the immigration judge s denial of his application for relief under the CAT. As such, the claim is abandoned. See Yousefi v. INS, 260 F.3d 318, 326 (4th Cir. 2001). Moreover, he did not raise any CAT claim before the Board, and thus failed to exhaust administrative remedies with respect to the CAT claim. See 8 U.S.C. § 1252(d)(1) (2006). 3 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). 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). 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 grant is mandatory. Gandziami-Mickhou v. Gonzales, 445 F.3d 351, 353-54 (4th Cir. 2006) (internal citations omitted). 4 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 testimony[.] contradictory Tewabe v. Gonzales, 446 F.3d 533, 538 (4th Cir. 2006) (internal quotation marks omitted). Likewise, the immigration judge cannot reject documentary evidence without specific, cogent reasons why the documents are not credible. Kourouma v. Holder, 588 F.3d 234, 241 (4th Cir. 2009). The REAL ID Act of 2005 also amended the law regarding credibility determinations for applications for asylum and withholding of removal filed after May 11, 2005, as is the case here. Such determinations are to be made based on the totality of the circumstances and all relevant factors, including: 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 such statements with other evidence of record . . . . 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[.] 5 8 U.S.C. § 1158(b)(1)(B)(iii) (2006) (emphasis added). This deference to evidence. 2004). court accords credibility Camara v. broad, findings Ashcroft, though supported 378 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 Tewabe, 446 F.3d at 538. evidence. 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). 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, we reviewed both decisions. Niang v. Gonzales, 492 F.3d 505, 511 n.8 (4th Cir. 2007). 6 We credibility between find substantial determination. Sangafio s evidence supports Specifically, testimony and his the the adverse discrepancies National Unity Party membership cards and his testimony and the affidavits submitted by friends and relatives. error to find that We also note that it was not clear Sangafio s testimony regarding being persecuted because of his party membership was inconsistent with the documentary evidence showing that his political party is part of the CAR government. 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 7

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