Adembuh v. Mukasey

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 07-1330

PROSPERE CHI ADEMBUH, a/k/a Francis Chubo,

Petitioner,

versus

MICHAEL B. MUKASEY, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration
Appeals. (A78-977-582)

Submitted: November 6, 2007 Decided: January 7, 2008

Before MICHAEL and GREGORY, Circuit Judges, and WILKINS, Senior
Circuit Judge.

Petition denied by unpublished per curiam opinion.

Danielle Beach-Oswald, BEACH-OSWALD, Washington, D.C., for
Petitioner. M. Jocelyn Lopez Wright, Assistant Director, Brianne
Whelan, Trial Attorney, Office of Immigration Litigation, U.S.
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Prospere Chi Adembuh, a native and citizen of Cameroon,

petitions for review of an order of the Board of Immigration

Appeals (“Board”) adopting and affirming the immigration judge’s

decision denying his applications for asylum, withholding from

removal and withholding under the Convention Against Torture

(“CAT”). Adembuh claims the Board erred in finding his asylum

application was filed late. He further claims the Board’s factual

findings are not supported by substantial evidence. He also claims

the Board’s finding that his asylum application was frivolous is

not supported by the evidence. We deny the petition for review.

An alien applying for asylum must show “by clear and

convincing evidence that the application has been filed within 1

year after the date of the alien’s arrival in the United States.”

8 U.S.C. § 1158(a)(2)(B) (2000). The one-year period begins on the

date of the alien’s last arrival in the United States or April 1,

1997, whichever is later. 8 C.F.R. § 1208.4(a)(2)(ii) (2007). An

asylum application may be considered after the one-year time frame

“if the alien demonstrates to the satisfaction of the Attorney

General either the existence of changed circumstances which

materially affect the applicant’s eligibility for asylum or

extraordinary circumstances relating to the delay in filing an

application within the period specified.” 8 U.S.C.

§ 1158(a)(2)(D). Extraordinary circumstances are “events or

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factors directly related to the failure to meet the 1-year

deadline” and may include ineffective assistance of counsel

“provided that” the alien complies with the requirements set forth

in Matter of Lozada, 19 I. & N. Dec. 637 (B.I.A. 1988), including

the requirement that “[t]he counsel whose integrity or competence

is being impugned has been informed of the allegations leveled

against him or her and given an opportunity to respond.” 8 C.F.R.

§ 1208.4(a)(5) (2007).

Under 8 U.S.C. § 1158(a)(3) (2000), “[n]o court shall

have jurisdiction to review any determination of the Attorney

General under paragraph (2),” which includes both the Attorney

General’s decisions whether an alien has complied with the one-year

time limit and whether there are changed or extraordinary

circumstances excusing the untimeliness. Courts of appeal have

uniformly held this jurisdiction-stripping provision precludes

judicial review not only of all such determinations but also the

merits of the underlying asylum claim. See Chen v. U.S. Dep’t of

Justice, 434 F.3d 144, 151 (2d Cir. 2006) (collecting cases). We

find we are without jurisdiction to review Adembuh’s challenge to

the finding that his asylum application was untimely.

“To qualify for withholding of removal, a petitioner must

show that he faces a clear probability of persecution because of

his race, religion, nationality, membership in a particular social

group, or political opinion.” Rusu v. INS, 296 F.3d 316, 324 n.13

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(4th Cir. 2002) (citing INS v. Stevic, 467 U.S. 407, 430 (1984)).

To qualify for protection under the CAT, a petitioner bears the

burden of demonstrating that “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) (2007). Factual findings by

the Board or the immigration judge “are conclusive unless any

reasonable adjudicator would be compelled to conclude to the

contrary.” 8 U.S.C. § 1252(b)(4)(B) (2000). Furthermore,

credibility findings are reviewed for substantial evidence. A

trier of fact who rejects an applicant’s testimony on credibility

grounds must offer specific, cogent reasons 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

quotations and 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). 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 find after reviewing the record that

substantial evidence supports the Board’s denial of Adembuh’s

request for withholding from removal and relief under the CAT. We

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further find substantial evidence supports the Board’s

frivolousness finding.

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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