Kodjo Aballo v. Loretta Lynch , 660 F. App'x 233 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-1174
KODJO ABALLO,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: September 20, 2016 Decided: October 5, 2016
Before MOTZ, SHEDD, and HARRIS, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Ronald D. Richey, LAW OFFICE OF RONALD D. RICHEY, Rockville,
Maryland, for Petitioner. Benjamin C. Mizer, Principal Deputy
Assistant Attorney General, Janette L. Allen, Senior Litigation
Counsel, Jennifer A. Bowen, 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Unpublished opinions are not binding precedent in this circuit.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:
Kodjo Aballo, a native and citizen of Togo, petitions for
review of an order of the Board of Immigration Appeals (Board)
dismissing his appeal from the immigration judge’s (IJ) decision
denying his applications for asylum, withholding of removal, and
protection under the Convention Against Torture (CAT). For the
reasons set forth below, we deny the petition for review.
The Immigration and Naturalization Act (“INA”) vests in the
Attorney General the discretionary power to grant asylum to
aliens who qualify as refugees. Djadjou v. Holder, 662 F.3d
265, 272 (4th Cir. 2011). A refugee is someone “who is unable
or unwilling 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) (2012).
An asylum applicant has the burden of proving that he satisfies
the definition of a refugee to qualify for relief. Djadjou, 662
F.3d at 272. He may satisfy this burden by showing that he was
subjected to past persecution or that he has a well-founded fear
of persecution on account of a protected ground. See 8 C.F.R.
§ 208.13(b)(1) (2016). If the applicant establishes past
persecution, he has the benefit of a rebuttable presumption of a
well-founded fear of persecution. Djadjou, 662 F.3d at 272.
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If the applicant is unable to establish that he was the
victim of past persecution, he must establish a well founded
fear of future persecution. A well founded fear of persecution
has a subjective and objective component. Marynenka v. Holder,
592 F.3d 594, 600 (4th Cir. 2010). The subjective component
requires that the applicant show genuine fear of persecution.
The objective component requires that the applicant show with
specific and concrete facts that a reasonable person in like
circumstances would fear persecution. Id.
An applicant faces a heightened burden of proof to qualify
for withholding of removal to a particular country under the
INA. Djadjou, 662 F.3d at 272. He must show a clear
probability of persecution on account of a protected ground.
Id. If he meets this heightened burden, withholding of removal
is mandatory. However, if the applicant cannot demonstrate
asylum eligibility, his application for withholding of removal
will necessarily fail as well. Id.
To qualify for protection under the CAT, an applicant bears
the burden of proof of showing “it is more likely than not that
he or she would be tortured if removed to the proposed country
of removal.” 8 C.F.R. § 1208.16(c)(2) (2016). To state a prima
facie case for relief under the CAT, an applicant must show that
he will be subjected to “severe pain or suffering, whether
physical or mental . . . by or at the instigation of or with the
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consent or acquiescence of a public official or other person
acting in an official capacity.” 8 C.F.R. § 1208.18(a)(1)
(2016); see Saintha v. Mukasey, 516 F.3d 243, 246 & n.2 (4th
Cir. 2008). The applicant need not prove the torture would be
inflicted on account of a protected ground. Dankam v. Gonzales,
495 F.3d 113, 115-16 (4th Cir. 2007).
Because the Board “issued its own opinion without adopting
the IJ’s opinion . . . we review that opinion and not the
opinion of the IJ.” Martinez v. Holder, 740 F.3d 902, 908 (4th
Cir. 2014). We will uphold the Board’s decision unless it is
manifestly contrary to the law and an abuse of discretion.
Djadjou, 662 F.3d at 273. The standard of review of the
agency’s findings is narrow and deferential. Factual findings
are affirmed if supported by substantial evidence. Id.
Substantial evidence exists to support a finding unless the
evidence was such that any reasonable adjudicator would have
been compelled to conclude to the contrary. Id.
We review an adverse credibility determination for
substantial evidence and give broad deference to the Board’s
credibility determination. However, the agency must provide
specific, cogent reasons for making an adverse credibility
determination. Djadjou, 662 F.3d at 273. “Examples of specific
and cogent reasons include inconsistent statements,
contradictory evidence, and inherently improbable testimony.”
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Tewabe v. Gonzales, 446 F.3d 533, 538 (4th Cir. 2006) (internal
quotation marks omitted). The existence of only a few such
inconsistencies, omissions, or contradictions can support an
adverse credibility determination as to the alien’s entire
testimony regarding past persecution. Djadjou, 662 F.3d at 273.
Also, an inconsistency can serve as a basis for an adverse
credibility determination even if it does not go to the heart of
the alien’s claim. Id. at 274 n.1.
We conclude that the adverse credibility finding is
supported by substantial evidence and confirms the conclusion
that Aballo failed to show a nexus between his past persecution
or fear of future persecution and a protected ground. Because
Aballo failed to meet his burden of showing a nexus, he did not
establish eligibility for asylum. Because Aballo did not meet
his burden of proof for asylum relief, his application for
withholding of removal also fails. Djadjou, 662 F.3d at 272.
Also, we discern no error with the Board’s finding that Aballo’s
return trips to Togo undermined his credibility. See Loho v.
Mukasey, 531 F.3d 1016, 1018 (9th Cir. 2008) (noting that
alien’s testimony that she returned to her homeland undermines
her testimony that she suffered past persecution or feared
returning home).
We also conclude that the adverse credibility finding
supports the decision that Aballo was not eligible for
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protection under the CAT. There is no independent evidence
showing that Aballo was ever tortured or that he faced a
likelihood of torture. Insofar as Aballo claims that the Board
erred by agreeing with the IJ that the Colonel’s alleged
persecution of Aballo was not part of his specific duties, the
Board specifically did not resolve this issue in reaching a
decision.
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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