Abiy Mammo v. Eric Holder, Jr.

Filing 920100514

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-2255

ABIY BERECHA MAMMO, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent.

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

Submitted:

April 29, 2010

Decided:

May 14, 2010

Before WILKINSON and AGEE, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Petition denied by unpublished per curiam opinion.

Jason A. Dzubow, MENSAH & DZUBOW, PLLC, Washington, D.C., for Petitioner. Tony West, Assistant Attorney General, Susan Houser, Senior Litigation Counsel, Steven F. Day, 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Unpublished opinions are not binding precedent in this circuit.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: Abiy Berecha Mammo, a native and citizen of Ethiopia, petitions for review of an order of the Board of Immigration Appeals judge's ("Board") order of affirming without opinion the immigration for the asylum,

denying removal

Mammo's and

applications under

withholding

withholding

Convention

Against Torture ("CAT").

We deny the petition for review.

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). 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) (2009), and can establish

refugee status based on past persecution in his native country on account of a protected ground. 2 8 C.F.R. § 1208.13(b)(1)

(2009).

"An applicant who demonstrates that he was the subject

of past persecution is presumed to have a well-founded fear of persecution." 2004). establish ground. Ngarurih v. Ashcroft, 371 F.3d 182, 187 (4th Cir. regard to past of persecution, persecution an on a alien can

Without a Id.

well-founded

fear

protected

"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) (alteration added). 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, contradictory

(internal quotation marks omitted). cogent reasons include inconsistent 3

evidence,

and

inherently

improbable

testimony[.]"

Tewabe

v.

Gonzales, 446 F.3d 533, 538 (4th Cir. 2006) (internal quotation marks and citation omitted). cannot reasons reject why documentary documents Likewise, "the immigration judge without specific, cogent v.

evidence are not

the

credible."

Kourouma

Holder, 588 F.3d 234, 241 (4th Cir. 2009). The REAL ID Act of 2005 also amended the law regarding credibility determinations for applications for asylum and

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[.] 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 4

cogent reasoning, however, it is not supported by substantial evidence. Tewabe, 446 F.3d at 538. Furthermore, this court may not reverse a finding

regarding the availability of corroborative evidence unless a reasonable factfinder is compelled to conclude that the

corroborative evidence is unavailable. (2006). A determination regarding

8 U.S.C. § 1252(b)(4)

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 substantial evidence supports the adverse

credibility finding, which was based on several discrepancies noted by the immigration judge and Mammo's testimonial demeanor. We further note the record does not compel a different result with respect to the immigration judge's findings regarding the need for additional corroborating evidence. 5 We also note Mammo

fails that,

to

challenge he

the was

immigration credible,

judge's he

alternate to

finding past

assuming

failed

show

persecution or a well-founded fear of persecution based on a protected ground. * 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

By failing to raise a challenge in his brief to that portion of the immigration judge's order denying relief under the CAT, review is abandoned. See Yousefi v. INS, 260 F.3d 318, 326 (4th Cir. 2001); Edwards v. City of Goldsboro, 178 F.3d 231, 241 (4th Cir. 1999).

*

6