Ling Yu v. Holder , 433 F. App'x 174 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-2088
LING YU,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: May 19, 2011 Decided: June 2, 2011
Before NIEMEYER, DUNCAN, and KEENAN, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Charles Christophe, CHRISTOPHE & ASSOCIATES, P.C., New York, New
York, for Petitioner. Tony West, Assistant Attorney General,
John S. Hogan, Senior Litigation Counsel, Rosanne M. Perry,
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Unpublished opinions are not binding precedent in this circuit.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:
Ling Yu, a native and citizen of the People’s Republic
of China, petitions for review 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”). We deny the petition for review.
The Immigration and Nationality Act (INA) authorizes
the Attorney General to confer asylum on any refugee. 8 U.S.C.
§ 1158(a) (2006). The INA 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)
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(2010). “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. Ngarurih, 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.” Qiao Hua Li, 405 F.3d
at 176 (internal quotation marks and citations omitted).
A trier of fact who rejects an applicant’s testimony
on credibility grounds, as in this case, 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 testimony . . . .” Tewabe v. Gonzales,
446 F.3d 533, 538 (4th Cir. 2006) (internal quotation marks and
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citations omitted). 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).
The REAL ID Act of 2005 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).
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
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fact, including findings on credibility, are conclusive unless
any reasonable adjudicator would be compelled to decide to the
contrary. 8 U.S.C. § 1252(b)(4)(B) (2006). Legal issues are
reviewed de novo, “affording appropriate deference to the BIA’s
interpretation of the INA and any attendant regulations.” Li
Fang Lin v. Mukasey, 517 F.3d 685, 691-92 (4th Cir. 2008). 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)).
Yu claims the immigration judge’s adverse credibility
finding was in error. We have reviewed the record and note that
the immigration judge’s adverse credibility finding was based on
specific and cogent reasons as noted by the Board. For
instance, Yu lied when asked if she had ever applied for a visa.
It was also noted that there were inconsistencies between her
testimony and her credible fear interview. “Inconsistent
statements and contradictory evidence qualify as cogent reasons
that could support an adverse credibility finding.” Dankam v.
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Gonzales, 495 F.3d 113, 121 (4th Cir. 2007) (internal quotation
marks omitted). The immigration judge was entitled to reject
Yu’s explanations for the discrepancies. Id. at 122. We
further conclude that the immigration judge’s findings regarding
the lack of credible independent evidence in support of Yu’s
claim for relief under the CAT are supported by substantial
evidence.
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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