Befekadu-Ashene v. Holder , 367 F. App'x 446 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-1806
NOAH BEFEKADU-ASHENE,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: February 2, 2010 Decided: February 26, 2010
Before SHEDD and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Petition denied by unpublished per curiam opinion.
Alan D. Dobson, Leake Fesseha, ALAN DOBSON & ASSOCIATES,
Arlington, Virginia, for Petitioner. Tony West, Assistant
Attorney General, John S. Hogan, Senior Litigation Counsel,
Michael C. Heyse, 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Unpublished opinions are not binding precedent in this circuit.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:
Noah Befekadu-Ashene (“Ashene”), a native and citizen
of Ethiopia, petitions for review of an order of the Board of
Immigration Appeals (“Board”) sustaining in part and dismissing
in part his appeal from the immigration judge’s order denying
his applications for asylum, withholding of removal and
withholding under the Convention Against Torture (“CAT”). We
deny the petition for review.
Ashene argues that an investigation into a portion of
his claim undertaken by the Consular Section of the United
States Embassy in Ethiopia at the request of the Department of
Homeland Security (“DHS”) breached his protection against having
information regarding his request for asylum leaked to Ethiopian
officials. 8 C.F.R. § 208.6(a) (2009) provides that
“[i]nformation contained in or pertaining to any asylum
application . . . shall not be disclosed without the written
consent of the applicant[.]” The DHS must coordinate with the
State Department to insure that that confidentiality of records
transmitted to the State Department is maintained. 8 C.F.R.
§ 208.6(b).
As DHS recognizes, the confidentiality regulations are
of utmost importance in protecting asylum applicants
because the regulations safeguard information that, if
disclosed publicly, could subject the claimant to
retaliatory measures by government authorities or non-
state actors in the event that the claimant is
repatriated, or endanger the security of the
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claimant’s family members who may still be residing in
the country of origin.
Anim v. Mukasey, 535 F.3d 243, 253 (4th Cir. 2008) (internal
quotation marks omitted). If there is a breach of
confidentiality, the asylum applicant is given a second
opportunity to file an asylum application or other form of
relief based on the breach. Id.Confidentiality is breached:
when information contained in or pertaining to an
asylum application is disclosed to a third party in
violation of the regulations, and the unauthorized
disclosure is of a nature that allows the third party
to link the identity of the applicant to: (1) the
fact that the applicant has applied for asylum; (2)
specific facts or allegations pertaining to the
individual asylum claim contained in an asylum
application; or (3) facts or allegations that are
sufficient to give rise to a reasonable inference that
the applicant has applied for asylum.
Lin v. Department of Justice, 459 F.3d 255, 263 (2d Cir. 2006)
(citations and internal quotation marks omitted). All that is
required to show a breach is evidence from which a reasonable
inference may be made that the foreign official learned of the
subject having applied for asylum. “Whether an applicant
satisfies this objective test is a matter of law, and our review
of the issue is de novo.” Anim, 535 F.3d at 255 (citing
Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008);
Averianova v. Mukasey, 509 F.3d 890, 899-900 (8th Cir. 2007);
Lin, 459 F.3d at 264-65 (“[T]he relevant issue is whether the
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information disclosed by the government was sufficient to give
rise to a reasonable inference that Lin had applied for
asylum.”)). We find the evidence regarding the investigation
does not give rise to a reasonable inference that Ashene applied
for asylum. Accordingly, we conclude that Ashene’s protection
against improper disclosure about his request for asylum was not
breached.
Ashene also challenges the adverse credibility
finding. 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).
“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
refugee status based on past persecution in his native country
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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 [his] life or freedom would be threatened in the country of
removal because of [his] race, religion, nationality, membership
in a particular social group, or political opinion.” Gomis v.
Holder, 571 F.3d 353, 359 (4th Cir. 2009), cert. denied, __ S.
Ct. __, 2010 WL 58386 (U.S. Jan. 11, 2010) (No. 09-194). “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) (alteration added).
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)
(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 citations 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). The REAL ID Act of
2005 also amended the law regarding credibility determinations
for applications for asylum and withholding of removal filed
after May 11, 2005, as is the case here. Such determinations
are to be made based on the totality of the circumstances and
all relevant factors, including:
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 . . . . 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.
8 U.S.C. § 1158(b)(1)(B)(iii) (2006) (emphasis added).
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
is based on speculation and conjecture rather than specific and
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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). Because the Board added its own reasoning
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. The immigration judge and the Board made
note of specific and cogent reasons that cast doubt on Ashene’s
claim that he was persecuted. Furthermore, there is a lack of
credible evidence showing a well-founded fear of persecution.
The record does not compel a different result.
Because Ashene failed to show past persecution or
evidence of significant political activity while in Ethiopia, we
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find substantial evidence supports the finding that Ashene
failed to show it was more likely than not he will be tortured
if he returns to his native country. 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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