Chen Jing v. Eric Holder, Jr.

Filing 920090724

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-2251 CHEN JING, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Submitted: June 22, 2009 Decided: July 24, 2009 Before MOTZ and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Petition denied by unpublished per curiam opinion. Eric Y. Zheng, New York, New York, for Petitioner. Michael F. Hertz, Acting Assistant Attorney General, William C. Peachey, Assistant Director, Matthew A. Spurlock, 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 Unpublished opinions are not binding precedent in this circuit.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: Chen Jing, 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 her appeal from the immigration judge's order denying her applications for asylum, withholding from removal and withholding under the Convention Against Torture ("CAT"). The INA We deny the petition for review. the Attorney General to confer authorizes asylum on any refugee. 8 U.S.C. 1158(a) (2006). It defines a refugee as a person unwilling or unable to return to her native country "because on of persecution of or a well-founded religion, fear of persecution account race, 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 or injury to one's torture, person or freedom, on account of one of the enumerated grounds. . . ." 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) (2008), and can establish refugee status based on past persecution in her native country on account of a protected ground. (2009). Without regard to past 2 8 C.F.R. 1208.13(b)(1) persecution, an alien can establish ground. 2004). a well-founded v. fear of persecution F.3d 182, on a protected (4th Cir. a Ngarurih The Ashcroft, fear 371 187 well-founded standard contains both subjective and an objective component. The objective element requires a showing of specific, concrete facts that would lead a reasonable person in v. like circumstances 445 F.3d can and to fear persecution. (4th Cir. the Gandziami-Mickhou 2006). "The Gonzales, 351, be 353 subjective of candid, component credible, met through presentation 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." 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 she were removed to her native country, her "life or freedom would be threatened" on a protected ground. 8 U.S.C. 1231(b)(3)(A) (2006); see A "clear Camara v. Ashcroft, 378 F.3d 361, 370 (4th Cir. 2004). probability" means that it is more likely than not the alien would be subject to persecution. 429-30 (1984). A determination regarding eligibility for asylum or INS v. Stevic, 467 U.S. 407, withholding of removal is affirmed if supported by substantial 3 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." This . . . Lin v. Mukasey, 517 F.3d 685, 691-92 (4th Cir. 2008). 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). final decision for this The immigration judge's order is the court's review as a result of the Board's affirmance without opinion. F.3d 250, 253 (4th Cir. 2003). We finding that find Jing substantial did not Khattak v. Ashcroft, 332 evidence a supports the Board's fear of establish well-founded persecution. qualify for Because Jing did not meet her burden of proof to asylum, she is necessarily ineligible for withholding of removal. 367 (4th Cir. 2004). See Camara v. Ashcroft, 378 F.3d 361, We also find the Board did not engage in We further find the Board did not err any improper factfinding. in finding that Jing did not establish that it was more likely 4 than not she will be tortured if returned to China; thus, Jing is not eligible for relief under the CAT. See 8 C.F.R. 208.16(c)(2) (2009). Accordingly, dispense with oral we deny the petition the for facts review. and We legal argument because contentions are adequately presented in the materials before the court and argument would not aid the decisional process. PETITION DENIED 5

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