Kanarith Yann v. Michael B. Mukasey , 270 F. App'x 449 ( 2008 )


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  •                     United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 07-1986
    ___________
    Kanarith Yann,                      *
    *
    Petitioner,               * Petition for Review of
    * a Decision of the Board of
    v.                             * Immigration Appeals.
    *
    Michael Mukasey, Attorney General,  * [UNPUBLISHED]
    *
    Respondent.               *
    ___________
    Submitted: March 13, 2008
    Filed: March 20, 2008
    ___________
    Before BYE, SMITH, and COLLOTON, Circuit Judges.
    ___________
    PER CURIAM.
    Kanarith Yann, a native and citizen of Cambodia, seeks review of a final order
    of removal issued by the Board of Immigration Appeals (BIA), which affirmed
    without opinion an Immigration Judge's (IJ's) decision denying his applications for
    asylum, withholding of removal, and protection under the regulations implementing
    the Convention Against Torture (CAT). After careful review, we deny Yann's
    petition.
    I
    Yann contends he is entitled to asylum and related relief because of a well
    founded fear he will be persecuted in Cambodia due to his membership in an
    opposition political party, the Sam Rainsy Party (SRP). Yann alleges the death threats
    of a police officer in Cambodia, from whom he narrowly escaped capture, forced him
    into hiding for fourteen months and eventually caused him to seek refuge in the
    United States. Yann claims this particular police officer, Nget Touch, continues to
    search for him at the homes of friends and family in Cambodia.
    The IJ did not find credible Yann's account of his experiences in Cambodia,
    noting several omissions, material inconsistencies, and unexplained discrepancies
    between his oral testimony and his amended asylum application. The IJ found
    implausible Yann's claim that Officer Touch sought to kill him, noting inconsistent
    testimony regarding: the location from which Yann escaped, the means of his escape,
    the location to which he fled after his escape, whether some or all of his companions
    escaped, and whether he met up with any of his companions after the escape.
    Because Yann's credibility was at issue, the IJ required corroborating evidence.
    See Kondakova v. Ashcroft, 
    383 F.3d 792
    , 796 (8th Cir. 2004) (stating where an alien
    is found not credible, his failure to provide corroborating evidence can be fatal). Yann
    submitted a SRP membership card, which was issued nine months after the
    persecution allegedly began, and also a letter from the SRP confirming Yann's status
    as an active party member living at a Cambodian address. The SRP letter was dated
    October 25, 2004, two and a half years after Yann moved to the United States. Yann
    also submitted a letter from a Cambodian friend, who wrote police officers had come
    to his house looking for Yann. The IJ did not find the documents Yann submitted to
    be adequate corroboration.
    -2-
    Having found Yann's testimony of past persecution not credible, the IJ
    reasonably determined Yann failed to establish a clear probability of future
    persecution. The IJ expressly denied all forms of relief based on the general
    conclusion that Yann's testimony was not credible and his story was unbelievable.
    See, e.g., Fofanah v. Gonzales, 
    447 F.3d 1037
    , 1040 (8th Cir. 2006) (holding where
    withholding of removal and CAT claims were based on the same discredited
    testimony, the BIA properly concluded the adverse credibility finding was fatal to all
    claims). The BIA affirmed without opinion.
    II
    Generally, we review the BIA's decision as the final agency determination. See
    INA § 242(a)(1), 
    8 U.S.C. § 1252
    (a)(1). Where the BIA affirms an IJ's decision
    without issuing its own opinion, we review the IJ's decision directly. Habtemicael v.
    Ashcroft, 
    370 F.3d 774
    , 779 (8th Cir. 2004).
    Yann challenges the IJ's adverse credibility determination. A credibility
    determination is a finding of fact, and § 1252(b)(4)(B) provides it should be accepted
    "unless any reasonable adjudicator would be compelled to conclude to the contrary."
    
    8 U.S.C. § 1252
    (b)(4)(B); see Singh v. Gonzales, 
    495 F.3d 553
    , 556 (8th Cir. 2007).1
    Applying this standard, we conclude the IJ's adverse credibility finding is supported
    by specific, cogent reasons to doubt Yann's credibility. See Gemechu v. Ashcroft, 
    387 F.3d 944
    , 947-48 (8th Cir. 2004) (holding an IJ's credibility findings are entitled to
    deference if supported by specific, cogent reasons). Yann's inconsistent testimony and
    suspect corroborating evidence support the IJ's finding. See Onsongo v. Gonzales,
    1
    The Real ID Act of 2005, Pub.L. 109-13, includes a specific provision
    governing credibility determinations, 
    8 U.S.C. § 1158
    (b)(1)(B)(iii), but this provision
    applies only to applications made after May 11, 2005. Pub.L. 109-13, § 101(h)(2).
    Yann made his application before that date, so the new statute does not apply.
    -3-
    
    457 F.3d 849
    , 853 (8th Cir. 2006). The IJ offered an adequate explanation for her
    finding Yann was not credible. The record does not compel a contrary conclusion.
    III
    Accordingly, the petition for review is denied.
    ______________________________
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