Aboflan v. Holder , 339 F. App'x 318 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-2258
AYAWOA ABOFLAN,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: June 26, 2009 Decided: July 29, 2009
Before GREGORY, SHEDD, and DUNCAN, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Timothy E. Wichmer, BERNHARDT & WICHMER, P.C., St. Louis,
Missouri, for Petitioner. Tony West, Assistant Attorney
General, Jennifer L. Lightbody, Senior Litigation Counsel,
Robbin K. Blaya, 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Unpublished opinions are not binding precedent in this circuit.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:
Ayawoa Aboflan, a native and citizen of Togo,
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
from removal and withholding under the Convention Against
Torture (“CAT”). Aboflan challenges the adverse credibility
finding and the denial of relief under the CAT. We deny the
petition for review.
The Immigration and Nationality Act 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 . . . .” 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
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refugee status based on past persecution in her native country
on account of a protected ground. 8 C.F.R. § 1208.13(b)(1)
(2009). Without regard to past persecution, an alien can
establish a well-founded fear of persecution on a protected
ground. Ngarurih v. Ashcroft, 371 F.3d 182, 187 (4th Cir.
2004).
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).
“Examples of specific and cogent reasons include inconsistent
statements, contradictory evidence, and inherently improbable
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testimony . . . .” Tewabe v. Gonzales, 446 F.3d 533, 538 (4th
Cir. 2006) (internal quotation marks and citations omitted).
Where, as here, the applicant filed her application
for asylum after May 11, 2005, certain provisions of the REAL ID
Act of 2005 regarding credibility determinations are applicable.
See 8 U.S.C. § 1158(b)(1)(B)(iii) (2006). Specifically, “a
trier of fact may base a credibility determination on 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 (including the reports of the Department of
State on country conditions), 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, or any other relevant factor.” 8 U.S.C.
§ 1158(b)(1)(B)(iii).
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 adverse credibility finding
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is based on speculation and conjecture rather than specific and
cogent reasoning, however, it is not supported by substantial
evidence. Tewabe, 446 F.3d at 538.
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 adverse
credibility finding and the record does not compel a different
result. We further find the immigration judge did not err by
considering the asylum officer’s written assessment. See
Krasnopivtsev v. Ashcroft, 382 F.3d 832, 837 (8th Cir. 2004)
(finding no error with respect to the admission of an asylum
officer’s assessment); see also Diallo v. Gonzales, 445 F.3d
624, 632 (2d Cir. 2006) (asylum interviews, like other materials
in the asylum record, should be accorded “the weight that they
merit in light of the record as a whole” and resulting factual
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determinations are reviewed for substantial evidence). We
further find substantial evidence supports the denial of relief
under the CAT. Aboflan failed to show that it was more likely
than not she will be tortured when she returns to Togo. See 8
C.F.R. § 1208.16(c)(2) (2009).
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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