UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-1311
BOUBACAR BARRY,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: September 30, 2010 Decided: October 14, 2010
Before AGEE and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Petition denied by unpublished per curiam opinion.
Yurika S. Cooper, IMMIGRATION LAW GROUP, PC, Washington, D.C.,
for Petitioner. Tony West, Assistant Attorney General, Carl H.
McIntyre, Assistant Director, John J. W. Inkeles, 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Unpublished opinions are not binding precedent in this circuit.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:
Boubacar Barry, a native and citizen of Sierra Leone,
petitions for review of an order of the Board of Immigration
Appeals (“Board”) dismissing his appeal from the immigration
judge’s order denying his applications for asylum, withholding
from removal and withholding under the Convention Against
Torture (“CAT”). We deny the petition for review.
Barry’s asylum application was denied because it was
untimely filed and he failed to establish extraordinary
circumstances or changed conditions warranting the late filing.
Under 8 U.S.C. § 1158(a)(3) (2006), the Attorney General’s
decision regarding whether an alien has complied with the one-
year time limit for filing an application for asylum or has
established changed or extraordinary circumstances justifying
waiver of that time limit is not reviewable by any court. See
Gomis v. Holder, 571 F.3d 353, 358-59 (4th Cir. 2009), cert.
denied, 130 S. Ct. 1048 (2010); Niang v. Gonzales, 492 F.3d 505,
510 n.5 (4th Cir. 2007). In any event, Barry fails to raise any
challenge to the Board’s finding that his asylum application was
untimely. Thus, even if this court had jurisdiction to review
that part of the Board’s decision, Barry has waived review. See
Ngarurih v. Ashcroft, 371 F.3d 182, 189 n.7 (4th Cir. 2004)
(failure to raise a challenge in an opening brief results in
2
abandonment of that challenge); Edwards v. City of Goldsboro,
178 F.3d 231, 241 n.6 (4th Cir. 1999) (same).
An alien who has filed an untimely asylum application
is still potentially eligible for the relief of withholding of
removal. To establish eligibility for withholding of removal,
an alien must show a clear probability that, if he was removed
to his native country, his “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 that the
alien would be subject to persecution. INS v. Stevic, 467 U.S.
407, 429-30 (1984). The protected ground must be a central
reason for being targeted for persecution. See Quinteros-
Mendoza v. Holder, 556 F.3d 159, 164 (4th Cir. 2009). Unlike
asylum, withholding of removal is mandatory for anyone who
establishes that his “life or freedom would be threatened . . .
because of [his] race, religion, nationality, membership in a
particular social group, or political opinion.” 8 U.S.C.
§ 1231(b)(3)(A) (2006). A determination regarding eligibility
for withholding of removal is conclusive if supported by
substantial evidence on the record considered as a whole.
INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992).
Credibility findings are reviewed for substantial
evidence. A trier of fact who rejects an applicant’s testimony
3
on credibility grounds must offer a “specific, cogent reason”
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
evidence, and inherently improbable testimony[.]” Tewabe v.
Gonzales, 446 F.3d 533, 538 (4th Cir. 2006) (internal quotation
marks 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, however, it is not supported by substantial
evidence. Tewabe, 446 F.3d at 538.
We conclude that the adverse credibility finding is
supported by substantial evidence. Given the adverse
credibility finding, we further conclude that the record does
not compel a different result with regard to the denial of
withholding of removal. We also note that Barry has waived
review of the denial of withholding under the CAT by failing to
raise any challenge to the denial in his opening brief. See
Ngarurih, 371 F.3d at 189 n.7.
We deny the petition for review. We dispense with
oral argument because the facts and legal contentions are
4
adequately presented in the materials before the court and
argument would not aid the decisional process.
PETITION DENIED
5