Hao Chen v. Holder , 361 F. App'x 468 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-1477
HAO CHEN,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: December 16, 2009 Decided: January 15, 2010
Before MICHAEL, MOTZ, and GREGORY, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Jay Ho Lee, JAY HO LEE LAW OFFICES, LLC, New York, New York, for
Petitioner. Tony West, Assistant Attorney General, William C.
Peachey, Assistant Director, Rebecca Hoffberg, 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Unpublished opinions are not binding precedent in this circuit.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:
Hao Chen, a native and citizen of the People’s
Republic of China, petitions for review of an order of the Board
of Immigration Appeals (“Board”) dismissing his appeal from the
immigration judge’s decision denying his applications for
asylum, withholding of 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), (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), and can establish refugee status based on past
persecution in his native country on account of a protected
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ground. 8 C.F.R. § 1208.13(b)(1) (2009). “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. Id.“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), petition for cert. filed, Aug. 11, 2009 (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).
We review credibility findings 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
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evidence, and inherently improbable testimony[.]” Tewabe v.
Gonzales, 446 F.3d 533, 538 (4th Cir. 2006) (internal quotation
marks omitted).
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, it is not supported by substantial evidence. Tewabe,
446 F.3d at 538.
We affirm a determination regarding eligibility for
asylum or withholding of removal if it is supported by
substantial evidence on the record considered as a whole. See
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 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, we review both decisions. Niang v. Gonzales, 492 F.3d
505, 511 n.8 (4th Cir. 2007).
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We find that substantial evidence supports the adverse
credibility finding. It is reasonable to assume that Chen’s
original asylum application and statement would have contained
the most pertinent details concerning his claim that he suffered
past persecution. Chen’s failure to include his claim that he
was tortured with an electric baton, along with the immigration
judge’s finding regarding Chen’s demeanor and the other specific
reasons cited by the Board, all support the adverse credibility
finding. The record does not compel a different result.
We further find that Chen failed to show he was
prejudiced by any alleged due process error or that the
immigration judge misapplied the standard for requiring
corroboration. Accordingly, we find the Board’s denial of
Chen’s applications for asylum and withholding of removal is
supported by substantial evidence. *
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
*
Chen affirmatively waived any challenge to the denial of
relief under the Convention Against Torture.
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