Qing Lin v. Eric Holder, Jr., No. 12-1624 (4th Cir. 2012)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-1624 QING LIN, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Submitted: December 4, 2012 Decided: December 19, 2012 Before NIEMEYER, AGEE, and THACKER, Circuit Judges. Petition denied by unpublished per curiam opinion. Adedayo O. Idowu, LAW OFFICES OF ADEDAYO O. IDOWU, PLLC, New York, New York, for Petitioner. Stuart F. Delery, Acting Assistant Attorney General, Thomas B. Fatouros, Senior Litigation Counsel, Jeffrey R. Meyer, 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 Unpublished opinions are not binding precedent in this circuit.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: Qing Lin, a native and citizen of the People s Republic of China, petitions for review of an order of the Board of Immigration General s appeal Appeals from ( Board ) the sustaining immigration Lin s application for asylum. judge s the Attorney order granting The Board found no clear error with the immigration judge s adverse credibility finding or the finding that Lin failed to show past persecution, but vacated the immigration judge s finding that Lin had a well-founded fear of persecution and ordered him removed. 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). 8 U.S.C. It defines a refugee as 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. 8 U.S.C. § 1101(a)(42)(A) (2006). An alien bear[s] the burden of proving eligibility for asylum. Naizgi v. Gonzales, 455 F.3d 484, 486 (4th Cir. 2006), and can establish refugee status based on past persecution in his native country on account § 1208.13(b)(1) (2012). of a protected ground. 8 C.F.R. An applicant who demonstrates that he was the subject of past persecution is presumed to have a well2 founded fear of persecution. Ngarurih v. Ashcroft, 371 F.3d 182, 187 (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, including findings on credibility, are conclusive unless any reasonable adjudicator would be compelled to decide to the contrary. reviewed 8 U.S.C. § 1252(b)(4)(B) (2006). de [Board] s novo, affording interpretation appropriate of the INA Legal issues are deference and any to the 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, 316, 296 F.3d 325 n.14 (4th Cir. 2002). Furthermore, [t]he agency decision that an alien is not eligible for asylum is conclusive unless abuse of discretion. manifestly contrary to the law and an Marynenka v. Holder, 592 F.3d 594, 600 (4th Cir. 2010) (quoting 8 U.S.C. § 1252(b)(4)(D) (2006)). For asylum applications filed after the passage of the REAL ID Act of 2005, a trier of fact, considering the totality of the circumstances and all relevant 3 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. Thus, an [immigration determination fundamental 8 U.S.C. § 1158(b)(1)(B)(iii) (2006). need to an no judge s] longer alien s rest claim adverse solely for credibility on relief those under matters the Singh v. Holder, 699 F.3d 321, 329 (4th Cir. 2012). evaluating an asylum applicant s credibility, an INA. [I]n [immigration judge] may rely on omissions and inconsistencies that do not directly relate to the applicant s claim of persecution as long as the totality of the circumstances applicant is not credible. establish that the Xiu Xia Lin v. Mukasey, 534 F.3d 162, 164 (2d Cir. 2008). This court substantial evidence. applicant s testimony reviews A trier on credibility of fact credibility specific, cogent reason[s] for doing so. findings who grounds for rejects must an offer Figeroa v. INS, 886 F.2d 76, 78 (4th Cir. 1989); see also Singh, 699 F.3d at 329 (the more flexible approach to credibility determinations does not alter the requirement that specific and cogent reasons). the immigration judge offer Examples of specific and cogent reasons include inconsistent statements, contradictory evidence, and inherently improbable testimony. F.3d 533, 538 (4th Cir. 2006) 4 Tewabe v. Gonzales, 446 (internal quotation marks omitted). deference This to evidence. 2004). court accords credibility Camara v. broad, findings Ashcroft, though supported 378 F.3d not unlimited, by 361, 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 evidence. Tewabe, 446 F.3d at 538. We conclude that the immigration judge offered specific and cogent reasons to support the adverse credibility finding, particularly the evidence showing an inconsistency regarding why Lin came to the United States and inconsistent testimony between Lin and his witness regarding when Lin was introduced different to Christianity. result. The Because Lin s record does testimony not was compel found a not credible and there was no independent evidence supporting the finding that he was persecuted, we conclude that substantial evidence supports the finding that Lin did not establish past persecution. Without regard establish a well-founded ground. Ngarurih, 371 to 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 5 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 v. Gonzales, 405 F.3d 171, 176 (4th Cir. 2005) (internal quotation marks and citations omitted). Lin need not show he would be individually targeted for persecution if he shows that there is a pattern or practice in his or her country of nationality of persecution of a group of persons similarly situated to the applicant on account of race, religion, nationality, membership in a particular social group, or political opinion. (2012). 8 C.F.R. § 1208.13(b)(2)(iii) Lin must show that the persecution is thorough or systemic. Yong Hao Chen v. INS, 195 F.3d 198, 203 (4th Cir. 1999); see also Ngure v. Ashcroft, 367 F.3d 975, 991 (8th Cir. 2004) (to be a pattern or practice of persecution, persecution must be systemic, pervasive or organized ). the The persecution of unregistered church members must be so widespread that there is a reasonable possibility of Sugiarto v. Holder, 586 F.3d 90, 97 (1st Cir. 2009). 6 persecution. We finding conclude that Lin that did not substantial show that evidence there was supports a pattern the or practice of persecuting members of unregistered churches to such a degree that persons in Lin s position face a reasonable possibility of persecution. Accordingly, dispense with contentions are oral we deny argument adequately the petition because presented in the the for facts review. We and legal materials before this court and argument would not aid the decisional process. PETITION DENIED 7

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