Hartini Ngn v. Holder , 374 F. App'x 457 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-1936
HARTINI NGN; HARIYANTO NGN,
Petitioners,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: March 18, 2010 Decided: March 31, 2010
Before MICHAEL, KING, and DUNCAN, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Troy Nader Moslemi, New York, New York, for Petitioners. Tony
West, Assistant Attorney General, John S. Hogan, Senior
Litigation Counsel, Nicole J. Thomas-Dorris, 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Unpublished opinions are not binding precedent in this circuit.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:
Hartini Ngn and Hariyanto Ngn, 1 natives and citizens of
Indonesia, petition for review of an order of the Board of
Immigration Appeals (“Board”) dismissing their appeal from the
immigration judge’s order denying Hartini’s applications for
asylum, withholding from removal and withholding under the
Convention Against Torture (“CAT”). 2 We deny the petition for
review.
The Petitioners challenge the adverse credibility
finding and the finding that they failed to provide sufficient
corroborative evidence. The Immigration and Nationality Act
(“INA”) authorizes the Attorney General to confer asylum on any
refugee. 8 U.S.C. § 1158(a), (b) (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). 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
1
Both Petitioners are designated as having no given name
(“Ngn”).
2
Hartini was the lead asylum applicant.
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can establish refugee status based on past persecution in his
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).
“Withholding of removal is available under 8 U.S.C.
§ 1231(b)(3) if the alien shows that it is more likely than not
that her life or freedom would be threatened in the country of
removal because of her race, religion, nationality, membership
in a particular social group, or political opinion.” Gomis v.
Holder, 571 F.3d 353, 359 (4th Cir. 2009) (internal quotation
marks omitted), cert. denied, 130 S. Ct. 1048 (2010). “This is
a more stringent standard than that for asylum . . . . [and],
while asylum is discretionary, if an alien establishes
eligibility for withholding of removal, the grant is mandatory.”
Gandziami-Mickhou v. Gonzales, 445 F.3d 351, 353-54 (4th Cir.
2006) (internal 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
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evidence, and inherently improbable testimony . . . .” Tewabe
v. Gonzales, 446 F.3d 533, 538 (4th Cir. 2006) (internal
quotation marks omitted). Likewise, “the immigration judge
cannot reject documentary evidence without specific, cogent
reasons why the documents are not credible.” Kourouma v.
Holder, 588 F.3d 234, 241 (4th Cir. 2009).
We accord 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 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). We 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). Because the Board added its own reasoning
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when it adopted the immigration judge’s decision, this court
will review both decisions. Niang v. Gonzales, 492 F.3d 505,
511 n.8 (4th Cir. 2007).
We find substantial evidence supports the adverse
credibility finding. Hartini admitted she filed a false asylum
application claiming she was persecuted because she was a
Christian. She also admitted she continued to assert this false
claim in her interview with the asylum officer. This
uncontradicted finding is more than enough upon which to base an
adverse credibility finding. We also find the record supports
the immigration judge’s finding that Hartini failed to present
sufficient corroborative evidence that she feared persecution
from radical Islamics because she was a moderate Muslim.
Accordingly, the record does not compel a different result
regarding the denial of asylum or withholding from removal.
We further find substantial evidence supports the
finding that Hartini failed to show that it was more likely than
not she would be tortured if removed to Indonesia. 8 C.F.R.
§ 208.16(c)(1), (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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