Kodjo Aballo v. Loretta Lynch

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: A205-684-518. Copies to all parties and the agency. [999941907]. [16-1174]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-1174

KODJO ABALLO,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.

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

Submitted:

September 20, 2016

Decided:

October 5, 2016

Before MOTZ, SHEDD, and HARRIS, Circuit Judges.

Petition denied by unpublished per curiam opinion.

Ronald D. Richey, LAW OFFICE OF RONALD D. RICHEY, Rockville,
Maryland, for Petitioner.
Benjamin C. Mizer, Principal Deputy
Assistant Attorney General, Janette L. Allen, Senior Litigation
Counsel, Jennifer A. Bowen, 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Unpublished opinions are not binding precedent in this circuit.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:
Kodjo Aballo, a native and citizen of Togo, petitions for
review of an order of the Board of Immigration Appeals (Board)
dismissing his appeal from the immigration judge’s (IJ) decision
denying his applications for asylum, withholding of removal, and
protection under the Convention Against Torture (CAT).

For the

reasons set forth below, we deny the petition for review.
The Immigration and Naturalization Act (“INA”) vests in the
Attorney

General

the

discretionary

aliens who qualify as refugees.
265, 272 (4th Cir. 2011).
or

unwilling

to

return

power

to

grant

asylum

to

Djadjou v. Holder, 662 F.3d

A refugee is someone “who is unable
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 asylum applicant has the burden of proving that he satisfies
the definition of a refugee to qualify for relief.
F.3d at 272.

Djadjou, 662

He may satisfy this burden by showing that he was

subjected to past persecution or that he has a well-founded fear
of persecution on account of a protected ground.
§ 208.13(b)(1)

(2016).

If

the

applicant

See 8 C.F.R.

establishes

past

persecution, he has the benefit of a rebuttable presumption of a
well-founded fear of persecution.

2

Djadjou, 662 F.3d at 272.

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If the applicant is unable to establish that he was the
victim of past persecution, he must establish a well founded
fear of future persecution.

A well founded fear of persecution

has a subjective and objective component.
592 F.3d 594, 600 (4th Cir. 2010).

Marynenka v. Holder,

The subjective component

requires that the applicant show genuine fear of persecution.
The objective component requires that the applicant show with
specific and concrete facts that a reasonable person in like
circumstances would fear persecution.

Id.

An applicant faces a heightened burden of proof to qualify
for withholding of removal to a particular country under the
INA.

Djadjou,

662

F.3d

at

272.

He

must

show

a

clear

probability of persecution on account of a protected ground.
Id.
is

If he meets this heightened burden, withholding of removal
mandatory.

However,

if

the

applicant

cannot

demonstrate

asylum eligibility, his application for withholding of removal
will necessarily fail as well.

Id.

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

8 C.F.R. § 1208.16(c)(2) (2016).

To state a prima

facie case for relief under the CAT, an applicant must show that
he

will

be

subjected

to

“severe

pain

or

suffering,

whether

physical or mental . . . by or at the instigation of or with the
3

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consent or acquiescence of a public official or other person
acting

in

an

official

capacity.”

8

C.F.R.

§ 1208.18(a)(1)

(2016); 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.

Dankam v. Gonzales,

495 F.3d 113, 115-16 (4th Cir. 2007).
Because the Board “issued its own opinion without adopting
the

IJ’s

opinion

.

.

opinion of the IJ.”
Cir. 2014).
manifestly
Djadjou,

.

we

review

that

opinion

and

not

the

Martinez v. Holder, 740 F.3d 902, 908 (4th

We will uphold the Board’s decision unless it is
contrary

662

F.3d

to
at

the

law

273.

and

The

an

abuse

standard

of

of

discretion.

review

of

the

agency’s findings is narrow and deferential.

Factual findings

are

evidence.

affirmed

Substantial

if

supported

evidence

exists

by

substantial

to

support

a

finding

Id.

unless

the

evidence was such that any reasonable adjudicator would have
been compelled to conclude to the contrary.
We

review

an

adverse

credibility

Id.
determination

for

substantial evidence and give broad deference to the Board’s
credibility
specific,

determination.
cogent

reasons

However,
for

the

making

an

determination.

Djadjou, 662 F.3d at 273.

and

cogent

reasons

contradictory

evidence,

include
and

adverse

must

provide

credibility

“Examples of specific

inconsistent

inherently
4

agency

improbable

statements,
testimony.”

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

The existence of only a few such

inconsistencies,

or

adverse

omissions,

credibility

contradictions

determination

as

testimony regarding past persecution.
Also,

an

inconsistency

can

serve

to

can

the

support

alien’s

an

entire

Djadjou, 662 F.3d at 273.

as

a

basis

for

an

adverse

credibility determination even if it does not go to the heart of
the alien’s claim.
We

conclude

Id. at 274 n.1.
that

the

adverse

credibility

finding

is

supported by substantial evidence and confirms the conclusion
that Aballo failed to show a nexus between his past persecution
or fear of future persecution and a protected ground.

Because

Aballo failed to meet his burden of showing a nexus, he did not
establish eligibility for asylum.
his

burden

of

proof

for

asylum

Because Aballo did not meet
relief,

withholding of removal also fails.

his

application

for

Djadjou, 662 F.3d at 272.

Also, we discern no error with the Board’s finding that Aballo’s
return trips to Togo undermined his credibility.
Mukasey,

531

F.3d

1016,

1018

(9th

Cir.

2008)

See Loho v.
(noting

that

alien’s testimony that she returned to her homeland undermines
her

testimony

that

she

suffered

past

persecution

or

feared

returning home).
We
supports

also
the

conclude
decision

that
that

the

adverse

Aballo
5

was

credibility
not

finding

eligible

for

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protection
showing

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under

that

the

Aballo

CAT.
was

likelihood of torture.
erred

by

agreeing

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There
ever

is

no

tortured

independent
or

that

he

evidence
faced

a

Insofar as Aballo claims that the Board

with

the

IJ

that

the

Colonel’s

alleged

persecution of Aballo was not part of his specific duties, the
Board

specifically

did

not

resolve

this

issue

in

reaching

a

decision.
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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