Chen Jing v. Holder

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 08-2251

CHEN JING,

Petitioner,

ERIC H. HOLDER, JR., Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration
Appeals.

Submitted: June 22, 2009 Decided: July 24, 2009

Before MOTZ and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Petition denied by unpublished per curiam opinion.

Eric Y. Zheng, New York, New York, for Petitioner. Michael F.
Hertz, Acting Assistant Attorney General, William C. Peachey,
Assistant Director, Matthew A. Spurlock, 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Unpublished opinions are not binding precedent in this circuit.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:

Chen Jing, 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 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 INA authorizes the Attorney General to confer

asylum on any refugee. 8 U.S.C. § 1158(a) (2006). It 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.

. . .” 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) (2008), 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)

(2009). Without regard to past persecution, an alien can

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establish a well-founded fear of persecution on a protected

ground. Ngarurih v. Ashcroft, 371 F.3d 182, 187 (4th Cir.

2004). 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.” Li, 405 F.3d at 176 (internal

quotation marks and citations omitted).

To establish eligibility for withholding of removal,

an alien must show a clear probability that, if she were removed

to her native country, her “life or freedom would be threatened”

on a protected ground. 8 U.S.C. § 1231(b)(3)(A) (2006); see

Camara v. Ashcroft, 378 F.3d 361, 370 (4th Cir. 2004). A “clear

probability” means that it is more likely than not the alien

would be subject to persecution. INS v. Stevic, 467 U.S. 407,

429-30 (1984).

A determination regarding eligibility for asylum or

withholding of removal is affirmed if supported by substantial

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evidence on the record considered as a whole. INS v. Elias-

Zacarias, 502 U.S. 478, 481 (1992). Administrative findings of

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.”

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). The immigration judge’s order is the

final decision for this court’s review as a result of the

Board’s affirmance without opinion. Khattak v. Ashcroft, 332

F.3d 250, 253 (4th Cir. 2003).

We find substantial evidence supports the Board’s

finding that Jing did not establish a well-founded fear of

persecution. Because Jing did not meet her burden of proof to

qualify for asylum, she is necessarily ineligible for

withholding of removal. See Camara v. Ashcroft, 378 F.3d 361,

367 (4th Cir. 2004). We also find the Board did not engage in

any improper factfinding. We further find the Board did not err

in finding that Jing did not establish that it was more likely

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than not she will be tortured if returned to China; thus, Jing

is not eligible for relief under the CAT. See 8 C.F.R.

§ 208.16(c)(2) (2009).

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