Kirubale Abera v. Eric Holder, Jr.

Filing 920090813

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-2264

KIRUBALE TEKELE ABERA, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals.

Submitted:

July 30, 2009

Decided:

August 13, 2009

Before NIEMEYER, KING, and DUNCAN, Circuit Judges.

Petition denied by unpublished per curiam opinion.

Alan D. Dobson, ALAN DOBSON & ASSOCIATES, PLLC, Washington, D.C., for Petitioner. Tony West, Assistant Attorney General, John S. Hogan, Senior Litigation Counsel, Michael C. Heyse, 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Unpublished opinions are not binding precedent in this circuit.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: Kirubale Ethiopia, petitions Appeals Tekele for Abera, of a an native order his and of citizen the Board from of of the

review

Immigration

("Board")

dismissing

appeal

immigration judge's order denying his applications for asylum, withholding from removal, and withholding under the Convention Against Torture ("CAT"). Abera challenges the adverse We

credibility finding and the denial of relief under the CAT. deny the petition for review. The Immigration and Nationality Act 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." involves the 8 U.S.C. § 1101(a)(42)(A) or threat of (2006). death,

"Persecution

infliction

torture, or injury to one's 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) 2 (2009), and can establish

refugee status based on past persecution in his native country on account of a protected ground. (2009). establish ground. 2004). The well-founded fear standard contains both a Without a regard to fear past of 8 C.F.R. § 1208.13(b)(1) persecution, persecution F.3d 182, an on a alien can

well-founded v.

protected (4th Cir.

Ngarurih

Ashcroft,

371

187

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). Credibility evidence. findings are reviewed for substantial

A trier of fact who rejects an applicant's testimony

on credibility grounds must offer "specific, cogent reason[s]" for doing so. Figeroa v. INS, 886 F.2d 76, 78 (4th Cir. 1989).

"Examples of specific and cogent reasons include inconsistent statements, contradictory evidence, 3 and inherently improbable

testimony . . . ."

Tewabe v. Gonzales, 446 F.3d 533, 538 (4th

Cir. 2006) (internal quotation marks and citations omitted). Where, as here, the applicant filed his application for asylum after May 11, 2005, certain provisions of the REAL ID Act of 2005 regarding credibility determinations are applicable. See 8 U.S.C. § 1158(b)(1)(B)(iii) (2006). Specifically,

a trier of fact may base a credibility determination on 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 (including the reports of the Department of State on country conditions), 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, or any other relevant factor. 8 U.S.C. § 1158(b)(1)(B)(iii). This deference evidence. 2004). to court accords broad, though not by 367 unlimited, substantial (4th Cir.

credibility v.

findings 378

supported F.3d 361,

Camara

Ashcroft,

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.

4

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 are conclusive unless any reasonable adjudicator would be compelled to decide to the contrary. (2006). 8 U.S.C. § 1252(b)(4)(B)

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). We find that substantial evidence supports the adverse credibility finding. We have reviewed the record, including the

independent evidence supporting the claim of past persecution, and find that the record does not compel a different result. We

further find that substantial evidence supports the denial of relief under the CAT. Abera failed to show that it was more

likely than not he will be tortured when he returns to Ethiopia. See 8 C.F.R. § 1208.16(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

5

court and argument would not aid the decisional process.

PETITION DENIED

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