Kassahun Asfaw v. Eric Holder, Jr.

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: A079-509-444. Copies to all parties and the district court/agency. [999589625]. [14-1672]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-1672

KASSAHUN ASFAW,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.

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

Submitted:

April 13, 2015

Decided:

May 26, 2015

Before WYNN and DIAZ, Circuit Judges, and DAVIS, Senior Circuit
Judge.

Petition denied by unpublished per curiam opinion.

Alan M. Parra, LAW OFFICE OF ALAN M. PARRA, for Petitioner.
Joyce R. Branda, Acting Assistant Attorney General, Lyle Davis
Jentzer, Alison Marie Igoe, Senior Counsels for National
Security, Office of Immigration Litigation, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Kassahun Asfaw, a native and citizen of Ethiopia, petitions
for

review

(“Board”)

of

an

order

dismissing

of

his

the

appeal

Board
from

of

Immigration

Appeals

the

immigration

judge’s

(“IJ”) order denying his applications for asylum, withholding of
removal, and withholding under the Convention Against Torture
(“CAT”).

The IJ found that Asfaw’s testimony was not credible

and

he

that

was

not

eligible

for

asylum

or

withholding

of

removal under 8 U.S.C. § 1158(b)(2)(A)(i) (2012), and 8 U.S.C.
§ 1231(b)(3)(B)(i) (2012).

We deny the petition for review.

The Immigration and Nationality Act (“INA”) authorizes the
Attorney General to confer asylum on any refugee.
§ 1158(a) (2012).

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.”

8 U.S.C. § 1101(a)(42)(A) (2012).

An

applicant

from

removal

of

for

relief.

for

establishing

relief

eligibility

bears
8

the

C.F.R.

burden

§ 1240.8(d)

(2014); Quitanilla v. Holder, 758 F.3d 570, 579 (4th Cir. 2014).
When

the

evidence

indicates

that

there

are

grounds

for

the

mandatory denial of relief, the alien has the burden of proving
by a preponderance of the evidence that the bar to relief does
not apply.

8 C.F.R. § 1240.8(d); Quitanilla, 758 F.3d at 579.
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An alien who is found to have “ordered, incited, assisted, or
otherwise
account

participated
of

race,

in

the

persecution

religion,

of

nationality,

any

person

membership

in

on
a

particular social group, or political opinion,” is not eligible
for

asylum

or

withholding

of

removal.

8

U.S.C.

§§ 1158(b)(2)(A)(i), 1231(b)(3)(B)(i).
We review issues of law de novo and factual issues under
the substantial evidence standard.
902, 905 (4th Cir. 2013).

Pastora v. Holder, 737 F.3d

Thus, adverse credibility findings

are reviewed for substantial evidence.
76,

78

(4th

applicant’s
“specific,
quotation

Cir.

1989).

testimony
cogent

marks

A

on

trier

of

credibility

reason[s]”

omitted).

Figeroa v. INS, 886 F.2d

for

fact

grounds

doing

“Examples

who

so.

of

rejects
must

Id.

specific

an

offer

(internal
and

cogent

reasons include inconsistent statements, contradictory evidence,
and

inherently

improbable

testimony

.

.

.

.”

Tewabe

v.

Gonzales, 446 F.3d 533, 538 (4th Cir. 2006) (internal quotation
marks

omitted).

deference
evidence.
2004).

to

We

accord

credibility

Camara v.

broad,

findings

Ashcroft,

378

though

supported
F.3d

361,

not
by
367

unlimited,
substantial
(4th

Cir.

The IJ may not rely on “‘speculation, conjecture, or an

otherwise
applicant’s

unsupported
testimony

personal
or

opinion’

[his]

to

discredit

corroborating

an

evidence.”

Marynenka v. Holder, 592 F.3d 594, 601 (4th Cir. 2010) (quoting
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Tewabe, 446 F.3d at 538).

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When the Board adopts and affirms the

IJ’s decision, and supplements it with its own opinion, as in
this case, we review both decisions.

Cordova v. Holder, 759

F.3d 332, 337 (4th Cir. 2014).
We conclude that substantial evidence supports the adverse
credibility finding.
with

statements

conclude

that

he

the

Asfaw’s testimony was clearly inconsistent
made
IJ

to

did

the
not

asylum
err

explanation for the inconsistencies.

by

officer.
not

We

further

crediting

Asfaw’s

See Hui Pan v. Holder, 737

F.3d 921, 930 (4th Cir. 2013).
Substantial evidence also supports the IJ’s finding that
during Asfaw’s employment with the Ministry of the Interior for
the

Ethiopian

government

during

the

Mengistu

assisted in the persecution of others.
indicates

that

the

“persecutor

bar”

regime,

The evidence clearly

could

apply

applications for asylum and withholding of removal.
737 F.3d at 906.

Asfaw

to

Asfaw’s
Pastora,

Our consideration of Asfaw’s testimony and his

statements to the asylum officer convinces us that Asfaw failed
to show by a preponderance of the evidence that the persecutor
bar did not apply to him.

Id.

We therefore find no error with

the determination that Asfaw was not statutorily eligible for
asylum or withholding of removal.
To qualify for protection under the CAT, an alien bears the
burden of proof of showing “it is more likely than not that he
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or she would be tortured if removed to the proposed country of
removal.”

8 C.F.R. § 1208.16(c)(2) (2014).

To state a prima

facie case for relief, an alien must show that he or she will be
subject to “severe pain or suffering, whether physical or mental
.

.

.

by

or

at

the

instigation

of

or

with

the

consent

or

acquiescence of a public official or other person acting in an
official

capacity.”

8

C.F.R.

§

1208.18(a)(1)

(2014);

see

Saintha v. Mukasey, 516 F.3d 243, 246 & n.2 (4th Cir. 2008).
The applicant need not prove the torture would be inflicted on
account of a protected ground.
113, 116 (4th Cir. 2007).

Dankam v. Gonzales, 495 F.3d

We review for substantial evidence

the denial of relief under the CAT, id. at 124, and we conclude
that substantial evidence supports the finding that Asfaw did
not establish that it was more likely than not that he will be
tortured if he returns to Ethiopia.
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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