Diallo v. Mukasey , 293 F. App'x 1001 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-1065
MAMOUDOU DIALLO; AISSATA LAMARANA DIALLO; AMADOU SADIO DIALLO,
Petitioners,
v.
MICHAEL B. MUKASEY, Attorney General,
Respondent.
On Petition for Review of Orders of the Board of Immigration
Appeals.
Submitted: August 22, 2008 Decided: September 26, 2008
Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Michael R. Lazerwitz, Jennifer Meyer Babounakis, Nicole Rothe,
Kelly A. Rutan, CLEARY, GOTTLIEB, STEEN & HAMILTON, LLP,
Washington, D.C., for Petitioners. Gregory G. Katsas, Acting
Assistant Attorney General, Emily Anne Radford, Assistant Director,
James A. Hunolt, 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Unpublished opinions are not binding precedent in this circuit.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:
Mamoudou Diallo (“Diallo”), his wife Aissata Diallo and
their child, Amadou Sadio, natives and citizens of Guinea, petition
for review of orders of the Board of Immigration Appeals (“Board”)
dismissing the appeal from the immigration judge’s order denying
the applications for asylum, withholding from removal and
withholding under the Convention Against Torture (“CAT”), and
denying the motions to reopen and to reconsider. Diallo was the
primary applicant for relief and his family were derivative
applicants. 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 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)
(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 . . . .” 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) (2008), and can establish refugee status
based on past persecution in his native country on account of a
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protected ground. 8 C.F.R. § 1208.13(b)(1) (2008). “An applicant
who demonstrates that he was the subject 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., 371 F.3d 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.” 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 “specific, cogent reason[s]” for
doing so. Figeroa v. INS, 886 F.2d 76, 78 (4th Cir. 1989). This
court accords broad, though not unlimited, deference to credibility
findings supported by substantial evidence. Camara v. Ashcroft,
378 F.3d 361, 367 (4th Cir. 2004). If the immigration judge’s
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adverse credibility finding is based on speculation and conjecture
rather than specific and cogent reasoning, however, it is not
supported by substantial evidence. Tewabe v. Gonzales, 446 F.3d
533, 538 (4th Cir. 2006).
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).
We find substantial evidence supports the immigration
judge’s and the Board’s adverse credibility finding. We further
find support for the finding that Diallo was intending to establish
a home here in the United States prior to the event that allegedly
led him to flee Guinea in fear of persecution. We also find the
immigration judge’s decision denying Diallo’s application for
relief under the CAT was supported by substantial evidence. In
denying relief under the CAT, the immigration judge considered the
adverse credibility finding as well as the background evidence.
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We also review the Board’s decision to grant or deny a
motion to reconsider for abuse of discretion. INS v. Doherty, 502
U.S. 314, 323-24 (1992); see 8 C.F.R. § 1003.2(a) (2008). A motion
for reconsideration asserts that the Board made an error in its
earlier decision, Turri v. INS, 997 F.2d 1306, 1311 n.4 (10th Cir.
1993), and requires the movant to specify the error of fact or law
in the prior Board decision. 8 C.F.R. § 1003.2(b)(1) (2008);
Matter of Cerna, 20 I. & N. Dec. 399, 402 (B.I.A. 1991) (noting
that a motion to reconsider questions a decision for alleged errors
in appraising the facts and the law). The burden is on the movant
to establish that reconsideration is warranted. INS v. Abudu, 485
U.S. 94, 110 (1988). “To be within a mile of being granted, a
motion for reconsideration has to give the tribunal to which it is
addressed a reason for changing its mind.” Ahmed v. Ashcroft, 388
F.3d 247, 249 (7th Cir. 2004). Motions that simply repeat
contentions that have already been rejected are insufficient to
convince the Board to reconsider a previous decision. Id.We find no abuse of discretion in the Board’s denial of
Diallo’s motion to reconsider. Diallo failed to show any error of
fact or law supporting granting the motion. Likewise, we find the
Board did not abuse its discretion in denying Diallo’s motion to
reopen. See 8 C.F.R. § 1003.2(a) (2008); INS v. Doherty, 502 U.S.
314, 323-24 (1992); Nibagwire v. Gonzales, 450 F.3d 153, 156 (4th
Cir. 2006). His newly discovered evidence did not address many of
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the significant issues found by the immigration judge and the Board
that prevented granting relief. The Board’s conclusion was not
arbitrary, capricious or contrary to law.
Accordingly, we deny the petition for review. We grant
the motion to remove Mariama Diallo as a party to the petition. 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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