Yi Lin v. Eric Holder, Jr., No. 11-1110 (4th Cir. 2011)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-1110 YI DONG LIN, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Submitted: August 15, 2011 Decided: August 26, 2011 Before GREGORY, DUNCAN, and KEENAN, Circuit Judges. Petition denied by unpublished per curiam opinion. Gary J. Yerman, New York, New York, for Petitioner. Tony West, Assistant Attorney General, John Hogan, Senior Litigation Counsel, Ashley Y. Martin, 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 Unpublished opinions are not binding precedent in this circuit.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: Yi Dong Lin, 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 his appeal from the immigration asylum, judge s decision withholding of denying removal his and Convention Against Torture ( CAT ). applications withholding under for the 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 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. . . . F.3d 171, 177 (4th Cir. 2005) Qiao Hua Li v. Gonzales, 405 (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) (2011), and can establish refugee status based on past persecution in his native country 2 on account of a protected ground. (2011). 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. Ngarurih v. Ashcroft, 371 F.3d 182, 187 (4th Cir. 2004). 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). To establish eligibility for withholding of removal, an alien must show a clear probability that, if he was removed to his native country, his life or freedom would be threatened on a protected ground. 8 U.S.C. § 1231(b)(3)(A) (2006); see Camara v. Ashcroft, 378 F.3d 361, 370 (4th Cir. 2004). 3 A clear probability means that it is more likely than not that the alien would be subject to persecution. 407, 429-30 (1984). mandatory freedom for Unlike asylum, withholding of removal is anyone would be INS v. Stevic, 467 U.S. whose establishes threatened . . . that because there of life [their] or race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. § 1231(b)(3)(A) (2006). A trier of fact who rejects an applicant s testimony on credibility grounds must offer specific, cogent reason[s] Figeroa v. INS, 886 F.2d 76, 78 (4th Cir. 1989). for doing so. Examples of specific and cogent reasons include inconsistent statements, contradictory testimony . . . . Cir. 2006) evidence, and inherently improbable Tewabe v. Gonzales, 446 F.3d 533, 538 (4th (internal quotation marks and citations omitted). This court accords broad, though not unlimited, deference to credibility findings supported by substantial evidence. Camara, 378 F.3d at 367. Credibility determinations are to be made based on the totality of the including the applicant or circumstances demeanor, witness, candor, the and all or inherent relevant factors, responsiveness of the 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 4 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). 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). 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. 5 Marynenka v. Holder, 592 F.3d 594, 600 (4th Cir. 2010) (quoting 8 U.S.C. § 1252(b)(4)(D) (2006)). We immigration have reviewed judge s the finding record that supported by substantial evidence. note of Lin s testimonial and Lin was conclude not that the credible is The immigration judge took demeanor, which was supported by references to the transcript, Lin s testimony involving his New York identification card and Lin s testimony regarding public opposition to the family planning policy. his We find the record does not compel a different conclusion in this regard. We also conclude that substantial evidence supports the finding that even if Lin was credible, he failed to show that he suffered forced abortion. past persecution on account of his wife s See Matter of J-S-, 24 I. & N. Dec. 520 (A.G. 2008); see also Yi Ni v. Holder, 613 F.3d 415, 427 (4th Cir. 2010). the In addition, we conclude substantial evidence supports finding that Lin did not show a well-founded fear of persecution, either because of China s family planning policy or because of his fear that he may be a jailed or fined if he returns to China and it is discovered that he was smuggled out of the country. different result Accordingly, with the regard to withholding from removal. 6 record the does denial not of compel asylum a or In addition, we conclude that substantial supports the denial of relief under the CAT. evidence In his brief, Lin fails to cite anything from the record that supports a finding that it is more likely than not that he [] would be tortured if removed to China. 8 C.F.R. § 1208.16(c)(2) (2011). 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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