Josephine Olwande v. Eric Holder, Jr., No. 10-1680 (4th Cir. 2011)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-1680 JOSEPHINE FLORENCE OLWANDE; OMOLO; BELLA AKINYI OMOLO, STANLEY J. OMOLO; JEREMY T. Petitioners, v. ERIC H. HOLDER, JR., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Submitted: January 7, 2011 Decided: January 26, 2011 Before WILKINSON, AGEE, and DAVIS, Circuit Judges. Petition denied by unpublished per curiam opinion. Mary Ann Berlin, Baltimore, Maryland, for Petitioners. Tony West, Assistant Attorney General, Richard M. Evans, Assistant Director, Virginia Lum, 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 Unpublished opinions are not binding precedent in this circuit.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: Josephine Florence Olwande, a native and citizen of Kenya, petitions Immigration for Appeals review of ( Board ) an order dismissing of her the appeal Board of from the immigration judge s order denying her applications for asylum, withholding of removal and Against Torture ( CAT ). The INA withholding the Convention We deny the petition for review. authorizes asylum on any refugee. under the Attorney General 8 U.S.C. § 1158(a) (2006). to confer It defines a refugee as a person unwilling or unable to return to her native country because persecution on of persecution account of or race, a well-founded religion, fear of nationality, membership in a particular social group, or political opinion. 8 U.S.C. § 1101(a)(42)(A) (2006). infliction or threat of death, Persecution involves the torture, or injury to one s person or freedom, on account of one of the enumerated grounds. . . . Qiao Hua 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) (2010), and can establish refugee status based on past persecution in her native country on account of a protected ground. (2010). 8 C.F.R. § 1208.13(b)(1) An applicant who demonstrates that he was the subject 2 of past persecution is presumed to have a well-founded fear of persecution. Ngarurih v. Ashcroft, 371 F.3d 182, 187 (4th Cir. 2004). Without establish ground. a regard to well-founded Id. at 187. past fear persecution, of persecution an on requires a a can protected The well-founded fear standard contains both a subjective and an objective component. element alien showing of specific, The objective concrete facts that would lead a reasonable person in like circumstances to fear persecution. Gandziami-Mickhou v. Gonzales, 445 F.3d 351, 353 (4th Cir. 2006). The subjective component can be met through the of presentation candid, credible, and sincere testimony demonstrating a genuine fear of persecution . . . . [It] must have some basis in the reality of the circumstances and be validated with specific, concrete facts . . . and it cannot be mere irrational apprehension. Qiao Hua Li, 405 F.3d at 176 (internal quotation marks and citations omitted). 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 3 testimony[.] contradictory Tewabe v. Gonzales, 446 F.3d 533, 538 (4th Cir. 2006) (internal quotation marks and citation omitted). However, an adverse credibility claim an need not be fatal to asylum application if the applicant can present independent evidence of past persecution. Camara v. Ashcroft, 378 F.3d 361, 369-70 (4th Cir. 2004). A determination regarding 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). an alien is not Furthermore, [t]he agency decision that eligible for asylum is conclusive unless manifestly contrary to the law and an abuse of discretion. Marynenka v. Holder, 592 F.3d 594, 600 (4th Cir. 2010) (quoting 8 U.S.C. § 1252(b)(4)(D) (2006)). When the Board agrees with the immigration judge s findings and reasoning and supplements the immigration judge s opinion, this court will review both orders. Niang v. Gonzales, 492 2007). 4 F.3d 505, 511 n.8 (4th Cir. Olwande has abandoned any challenge to the adverse credibility finding because she did not raise a challenge in her brief. See Ngarurih, 371 F.3d at 189 n.7 (failure to raise a challenge in an opening brief results in abandonment of that challenge); Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir. 1999) (same). We conclude that substantial evidence supports the finding that in light of the adverse credibility finding, Olwande s sufficiently claim corroborated of and past the persecution record does was not not compel a different result regarding the denial of asylum or withholding from removal. * Insofar as Olwande challenges the denial of the motion for a continuance, we conclude there was no abuse of discretion. See Onyeme v. INS, 146 F.3d 227, 231 (4th Cir. 1998) (stating standard of review). the petition must We also conclude that Olwande s claim that be remanded to adjudicate the children s independent asylum claims is without merit. 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 * Olwande does not challenge the denial of CAT relief. 5

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