Li v. Gonzales

Filing 920060711

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 05-1358

JING YUN LI, Petitioner, versus ALBERTO R. GONZALES, Attorney General, Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. (A95-462-098)

Submitted:

November 18, 2005

Decided:

July 11, 2006

Before WILKINSON, LUTTIG,* and GREGORY, Circuit Judges.

Petition denied by unpublished per curiam opinion.

Matthew L. Guadagno, Kerry W. Bretz, Jules E. Coven, BRETZ & COVEN, L.L.P., New York, New York, for Petitioner. Rod J. Rosenstein, United States Attorney, Ariana Wright Arnold, Assistant United States Attorney, Baltimore, Maryland, for Respondent.

Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c).

Judge Luttig 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).

*

PER CURIAM: Jing Yun Li, a native and citizen of the People's

Republic of China, petitions for review of the Board of Immigration Appeals ("Board") order affirming the immigration judge's decision to deny her applications for asylum, withholding from removal and protection under the Convention Against Torture. petition for review. The INA authorizes the Attorney General to confer asylum on any refugee. 8 U.S.C. § 1158(a) (2000). It defines a refugee We deny the

as 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." (2000). An applicant can establish refugee status based on past persecution in her native country on account of a protected ground. 8 C.F.R. § 1208.13(b)(1) (2005). "An applicant who demonstrates 8 U.S.C. § 1101(a)(42)(A)

that he was the subject of past persecution is presumed to have a well-founded fear of persecution." 182, 187 (4th Cir. 2004). Ngarurih v. Ashcroft, 371 F.3d

This presumption can be rebutted on a

finding of a fundamental change of circumstances so that the alien no longer has a well-founded fear, or a finding that the alien could avoid persecution by relocating within the country of

removal.

8 C.F.R. § 1208.13(b)(1)(i)(A), (B) (2005).

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Without

regard

to

past

persecution,

an

alien

can

establish a well-founded fear of persecution on a protected ground. Ngarurih, 371 F.3d at 187. The well-founded fear of persecution

standard contains both a subjective and an objective component. "An applicant may satisfy the subjective element by presenting `candid, credible, and sincere testimony demonstrating a genuine fear of persecution.'" Chen v. INS, 195 F.3d 198, 201-02 (4th Cir.

1999) (quoting Berroteran-Melendez v. INS, 955 F.2d 1251, 1256 (9th Cir. 1992) (internal quotation marks omitted)). The objective

element requires a showing of specific, concrete facts that would lead a reasonable person in like circumstances to fear persecution. Huaman-Cornelio v. Bd. of Immigration Appeals, 979 F.2d 995, 999 (4th Cir. 1992). An applicant has the burden of demonstrating her

eligibility for asylum.

8 C.F.R. § 1208.13(a) (2005); Gonahasa v. Credibility findings,

INS, 181 F.3d 538, 541 (4th Cir. 1999).

relevant to the subjective component, are reviewed for substantial evidence. A trier of fact who rejects an applicant's testimony on

credibility grounds must offer specific, cogent reasons for doing so. Figeroa v. INS, 886 F.2d 76, 78 (4th Cir. 1989). We accord

broad, though not unlimited, deference to credibility findings supported by substantial evidence. 361, 367 (4th Cir. 2004). Camara v. Ashcroft, 378 F.3d

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To establish eligibility for withholding of removal, an alien must show a clear probability that, if she was removed to her native country, her "life or freedom would be threatened" on a protected ground. 8 U.S.C. § 1231(b)(3)(A) (2000); see Camara, 378 F.3d at 370 (4th Cir. 2004). A "clear probability" means it is

more likely than not the alien would be subject to persecution. INS v. Stevic, 467 U.S. 407, 429-30 (1984). "The burden of proof

is on the applicant for withholding of removal . . . to establish that his or her life or freedom would be threatened in the proposed country of removal" on account of a protected ground. § 1208.16(b) (2005). 8 C.F.R.

A showing of past threat to life or freedom

on such a ground creates a rebuttable presumption that the threat would recur upon removal. 8 C.F.R. § 1208.16(b)(1)(i); Camara, 378 F.3d at 370. Withholding of removal is mandatory if the alien Stevic, 467 U.S. at 429-30. eligibility for asylum or

meets the standard of proof. A determination

regarding

withholding of removal is conclusive if supported by substantial evidence on the record considered as a whole. INS v.

Elias-Zacarias, 502 U.S. 478, 481 (1992).

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)

(2000). We 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.'" Rusu v. INS, 296 F.3d 316,

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325 n.14 (4th Cir. 2002) (quoting Huaman-Cornelio, 979 F.2d at 999 (internal quotation marks omitted)). We find the immigration

judge's negative credibility finding was supported by substantial evidence. We further find the evidence was not so compelling as to

warrant reversal. With respect to the Board's affirmation of the

immigration judge's finding regarding relief under the Convention Against Torture, we find Li failed to establish it was more likely than not she will be tortured if she were to return to China. Accordingly, we deny the petition for review. We

dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

PETITION DENIED

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