Yu Ling v. Eric Holder, Jr., No. 10-2088 (4th Cir. 2011)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-2088 LING YU, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Submitted: May 19, 2011 Decided: June 2, 2011 Before NIEMEYER, DUNCAN, and KEENAN, Circuit Judges. Petition denied by unpublished per curiam opinion. Charles Christophe, CHRISTOPHE & ASSOCIATES, P.C., New York, New York, for Petitioner. Tony West, Assistant Attorney General, John S. Hogan, Senior Litigation Counsel, Rosanne M. Perry, 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 Unpublished opinions are not binding precedent in this circuit.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: Ling Yu, a native and citizen of the People s Republic of China, petitions Immigration Appeals for review ( Board ) an order dismissing of her the appeal Board of from the immigration judge s order denying her applications for asylum, withholding from removal and withholding under the Convention Against Torture ( CAT ). We deny the petition for review. The Immigration and Nationality Act (INA) authorizes the Attorney General to confer asylum on any refugee. § 1158(a) (2006). The INA defines a refugee as 8 U.S.C. a person unwilling or unable to return to her 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 Qiao Hua Li v. Gonzales, 405 of the enumerated grounds. . . . 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. 2 8 C.F.R. § 1208.13(b)(1) (2010). An applicant who demonstrates that he was the subject of past persecution is presumed to have a well-founded fear of persecution. 2004). Ngarurih v. Ashcroft, 371 F.3d 182, 187 (4th Cir. Without regard establish a ground. Ngarurih, to well-founded 371 past fear F.3d of at persecution, persecution 187. The an on alien a can protected well-founded fear standard contains both a subjective and an objective component. The objective element requires a showing of specific, 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 of the 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). A trier of fact who rejects an applicant s testimony on credibility grounds, as in this case, must offer specific, Figeroa v. INS, 886 F.2d 76, 78 cogent reason[s] for doing so. (4th Cir. include 1989). inconsistent Examples of statements, specific and contradictory inherently improbable testimony . . . . cogent reasons evidence, and Tewabe v. Gonzales, 446 F.3d 533, 538 (4th Cir. 2006) (internal quotation marks and 3 citations omitted). unlimited, This deference substantial evidence. to court accords credibility broad, findings though supported not by Camara v. Ashcroft, 378 F.3d 361, 367 (4th Cir. 2004). The credibility REAL ID Act of determinations 2005 for amended the applications law for regarding 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. 8 U.S.C. § 1158(b)(1)(B)(iii) (2006). 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). 4 INS v. Elias- Administrative findings of fact, including findings on credibility, are conclusive unless any reasonable adjudicator would be compelled to decide to the contrary. 8 U.S.C. § 1252(b)(4)(B) (2006). Legal issues are reviewed de novo, affording appropriate deference to the BIA s interpretation of the INA and any attendant regulations. Li Fang Lin v. Mukasey, 517 F.3d 685, 691-92 (4th Cir. 2008). 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). Furthermore, [t]he agency decision that an alien is not eligible for asylum is conclusive unless manifestly discretion. contrary to the law and an abuse of Marynenka v. Holder, 592 F.3d 594, 600 (4th Cir. 2010) (quoting 8 U.S.C. § 1252(b)(4)(D) (2006)). Yu claims the immigration judge s adverse credibility finding was in error. We have reviewed the record and note that the immigration judge s adverse credibility finding was based on specific and cogent reasons as noted by the Board. For instance, Yu lied when asked if she had ever applied for a visa. It was also noted that there were inconsistencies between her testimony and her credible fear interview. Inconsistent statements and contradictory evidence qualify as cogent reasons that could support an adverse credibility finding. 5 Dankam v. Gonzales, 495 F.3d 113, 121 (4th Cir. 2007) (internal quotation marks omitted). Yu s The immigration judge was entitled to reject explanations for the discrepancies. Id. at 122. We further conclude that the immigration judge s findings regarding the lack of credible independent evidence in support of Yu s claim for relief under the CAT are supported by substantial evidence. 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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