Sidwisbert Bango Sangafio v. Eric Holder, Jr.

Filing 920100514

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-2163

SIDWISBERT BANGO SANGAFIO, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent.

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

Submitted:

March 25, 2010

Decided:

May 14, 2010

Before MICHAEL 1 and DAVIS, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Petition denied by unpublished per curiam opinion.

Robert A. Remes, CARLINER & REMES, P.C., Washington, D.C., for Petitioner. Tony West, Assistant Attorney General, David V. Bernal, Assistant Director, Yedidya Cohen, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Judge Michael 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).

1

Unpublished opinions are not binding precedent in this circuit.

2

PER CURIAM: Sidwisbert Bango Sangafio, a native and citizen of the Central African Republic ("CAR"), petitions for review of an order of the Board of Immigration Appeals ("Board") dismissing his appeal from for the immigration judge's order from denying removal his and We

applications

asylum,

withholding

withholding under the Convention Against Torture ("CAT"). deny the petition for review. 2 Insofar extraordinary which to file as Sangafio claims the that one year of he

showed in

circumstances an asylum

excusing application

period his

because

lawful

status, we note he failed to exhaust this claim because he did not raise it before the Board on appeal. without jurisdiction to consider the Accordingly, we are See 8 U.S.C.

claim.

§ 1252(d)(1) (2006); Massis v. Mukasey, 549 F.3d 631, 638 (4th Cir. 2008), cert. denied, 130 S. Ct. 736 (2009); Asika v.

Ashcroft, 362 F.3d 264, 267 n.3 (4th Cir. 2004).

In his brief, Sangafio does not challenge the Board's decision dismissing the appeal from the immigration judge's denial of his application for relief under the CAT. As such, the claim is abandoned. See Yousefi v. INS, 260 F.3d 318, 326 (4th Cir. 2001). Moreover, he did not raise any CAT claim before the Board, and thus failed to exhaust administrative remedies with respect to the CAT claim. See 8 U.S.C. § 1252(d)(1) (2006).

2

3

The Immigration and Nationality Act ("INA") authorizes the Attorney General to confer asylum on any refugee. § 1158(a), (b) (2006). It 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 . . . ." Li v. Gonzales, 405 F.3d

171, 177 (4th Cir. 2005) (internal quotation marks and citations omitted). "Withholding of removal is available under 8 U.S.C. § 1231(b)(3) if the alien shows that it is more likely than not that her life or freedom would be threatened in the country of removal because of her race, religion, nationality, membership in a particular social group, or political opinion." Gomis v.

Holder, 571 F.3d 353, 359 (4th Cir. 2009) (internal quotation marks omitted), cert. denied, 130 S. Ct. 1048 (2010). "This is

a more stringent standard than that for asylum . . . . [and], while asylum is discretionary, if an alien establishes

eligibility for withholding of removal, the grant is mandatory." Gandziami-Mickhou v. Gonzales, 445 F.3d 351, 353-54 (4th Cir. 2006) (internal citations omitted). 4

Credibility evidence.

findings

are

reviewed

for

substantial

A trier of fact who rejects an applicant's testimony

on credibility grounds must offer a "specific, cogent reason" for doing so. Figeroa v. INS, 886 F.2d 76, 78 (4th Cir. 1989) "Examples of specific and statements, testimony[.]" contradictory Tewabe v.

(internal quotation marks omitted). cogent reasons and include inconsistent improbable

evidence,

inherently

Gonzales, 446 F.3d 533, 538 (4th Cir. 2006) (internal quotation marks omitted). Likewise, "the immigration judge cannot reject

documentary evidence without specific, cogent reasons why the documents are not credible." 241 (4th Cir. 2009). The REAL ID Act of 2005 also amended the law regarding credibility determinations for applications for asylum and Kourouma v. Holder, 588 F.3d 234,

withholding of removal filed after May 11, 2005, as is the case here. Such determinations are to be made based on the totality

of the circumstances and all relevant factors, including: 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 . . . . 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[.] 5

8 U.S.C. § 1158(b)(1)(B)(iii) (2006) (emphasis added). 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. A determination regarding eligibility for withholding of removal is affirmed if supported by substantial evidence on the record considered as a whole. U.S. 478, 481 (1992). INS v. Elias- Zacarias, 502 findings of fact are

Administrative

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

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). Because the Board added its own reasoning

when it adopted the immigration judge's decision, we reviewed both decisions. Cir. 2007). Niang v. Gonzales, 492 F.3d 505, 511 n.8 (4th

6

We credibility between

find

substantial

evidence

supports the

the

adverse

determination. testimony

Specifically, and his

discrepancies Unity Party

Sangafio's

National

membership cards and his testimony and the affidavits submitted by friends and relatives. error to find that We also note that it was not clear testimony regarding being

Sangafio's

persecuted because of his party membership was inconsistent with the documentary evidence showing that his political party is part of the CAR government. 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

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