Olwande v. Holder , 409 F. App'x 655 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-1680
JOSEPHINE FLORENCE OLWANDE; STANLEY J. OMOLO; JEREMY T.
OMOLO; BELLA AKINYI OMOLO,
Petitioners,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: January 7, 2011 Decided: January 26, 2011
Before WILKINSON, AGEE, and DAVIS, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Mary Ann Berlin, Baltimore, Maryland, for Petitioners. Tony
West, Assistant Attorney General, Richard M. Evans, Assistant
Director, Virginia Lum, 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Unpublished opinions are not binding precedent in this circuit.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:
Josephine Florence Olwande, a native and citizen of
Kenya, petitions for review of an order of the Board of
Immigration Appeals (“Board”) dismissing her appeal from the
immigration judge’s order denying her applications for asylum,
withholding of removal and withholding under the Convention
Against Torture (“CAT”). We deny the petition for review.
The INA authorizes the Attorney General to confer
asylum on any refugee. 8 U.S.C. § 1158(a) (2006). It defines a
refugee as a person unwilling or unable to return to her 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) (2006). “Persecution involves the
infliction or threat of death, torture, or injury to one’s
person or freedom, on account of one of the enumerated grounds.
. . .” Qiao Hua 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) (2010), and can establish
refugee status based on past persecution in her native country
on account of a protected ground. 8 C.F.R. § 1208.13(b)(1)
(2010). “An applicant who demonstrates that he was the subject
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of past persecution is presumed to have a well-founded fear of
persecution.” Ngarurih v. Ashcroft, 371 F.3d 182, 187 (4th Cir.
2004).
Without regard to past persecution, an alien can
establish a well-founded fear of persecution on a protected
ground. Id. at 187. The well-founded fear standard contains
both a subjective and an objective component. The objective
element requires a showing of specific, concrete facts that
would lead a reasonable person in like circumstances to fear
persecution. Gandziami-Mickhou v. Gonzales, 445 F.3d 351, 353
(4th Cir. 2006). “The subjective component can be met through
the presentation of candid, credible, and 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.” Qiao Hua Li, 405 F.3d at 176
(internal quotation marks and citations omitted).
Credibility findings are reviewed for substantial
evidence. 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)
(internal quotation marks omitted). “Examples of specific and
cogent reasons include inconsistent statements, contradictory
evidence, and inherently improbable testimony[.]” Tewabe v.
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Gonzales, 446 F.3d 533, 538 (4th Cir. 2006) (internal quotation
marks and citation omitted). However, an adverse credibility
claim need not be fatal to an asylum application if the
applicant can present independent evidence of past persecution.
Camara v. Ashcroft, 378 F.3d 361, 369-70 (4th Cir. 2004).
A determination regarding eligibility for asylum or
withholding of removal is affirmed if supported by substantial
evidence on the record considered as a whole. INS v. Elias-
Zacarias, 502 U.S. 478, 481 (1992). Administrative findings of
fact are 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). Furthermore, “[t]he agency decision that
an alien is not eligible for asylum is ‘conclusive unless
manifestly contrary to the law and an abuse of discretion.’”
Marynenka v. Holder, 592 F.3d 594, 600 (4th Cir. 2010) (quoting
8 U.S.C. § 1252(b)(4)(D) (2006)). When the Board agrees with
the immigration judge’s findings and reasoning and supplements
the immigration judge’s opinion, this court will review both
orders. Niang v. Gonzales, 492 F.3d 505, 511 n.8 (4th Cir.
2007).
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Olwande has abandoned any challenge to the adverse
credibility finding because she did not raise a challenge in her
brief. See Ngarurih, 371 F.3d at 189 n.7 (failure to raise a
challenge in an opening brief results in abandonment of that
challenge); Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6
(4th Cir. 1999) (same). We conclude that substantial evidence
supports the finding that in light of the adverse credibility
finding, Olwande’s claim of past persecution was not
sufficiently corroborated and the record does not compel a
different result regarding the denial of asylum or withholding
from removal. *
Insofar as Olwande challenges the denial of the motion
for a continuance, we conclude there was no abuse of discretion.
See Onyeme v. INS, 146 F.3d 227, 231 (4th Cir. 1998) (stating
standard of review). We also conclude that Olwande’s claim that
the petition must be remanded to adjudicate the children’s
independent asylum claims is without merit.
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
*
Olwande does not challenge the denial of CAT relief.
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