UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-1330
AMSALE TEFERA ASFAW,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: September 16, 2010 Decided: November 10, 2010
Before KING, AGEE, and KEENAN, Circuit Judges.
Petition denied by unpublished per curiam opinion.
E. Dennis Muchnicki, Dublin, Ohio, for Petitioner. Tony West,
Assistant Attorney General, Anthony W. Norwood, Senior
Litigation Counsel, Lisa M. Damiano, 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Unpublished opinions are not binding precedent in this circuit.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:
Petitioner Amsale Tefera Asfaw, a native and citizen
of Ethiopia, petitions for review of an order of the Board of
Immigration Appeals (“Board”) denying her applications for
asylum, withholding of removal and withholding under the
Convention Against Torture (“CAT”). Asfaw challenges the
adverse credibility finding.
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 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[.]” Qiao Hua Li v. Gonzales, 405 F.3d
171, 177 (4th Cir. 2005) (internal quotation marks 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) (2010), 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)
(2010). 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).
“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), cert. denied, 130 S. Ct. 1048 (2010). “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 citation omitted) (alteration added).
For asylum applications filed after the passage of the
REAL ID Act of 2005, a trier of fact, “[c]onsidering the
totality of the circumstances, and all relevant factors,” may
base a credibility determination on any inconsistency,
inaccuracy, or falsehood “without regard to whether [it] goes to
the heart of the applicant’s claim[.]” 8 U.S.C.
§ 1158(b)(1)(B)(iii) (2006). “[I]n evaluating an asylum
applicant’s credibility, an [Immigration Judge] may rely on
omissions and inconsistencies that do not directly relate to the
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applicant’s claim of persecution as long as the totality of the
circumstances establish that the applicant is not credible.”
Xiu Xia Lin v. Mukasey, 534 F.3d 162, 164 (2d Cir. 2008).
Credibility findings are reviewed for substantial
evidence. A trier of fact who rejects an applicant’s testimony
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 and citation 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. Likewise, “the immigration
judge cannot reject documentary evidence without specific,
cogent reasons why the documents are not credible.” Kourouma v.
Holder, 588 F.3d 234, 241 (4th Cir. 2009).
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 are conclusive unless any reasonable adjudicator would be
compelled to decide to the contrary. 8 U.S.C. § 1252(b)(4)(B)
(2006). 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). *
We conclude that substantial evidence supports the
adverse credibility finding and the record does not compel a
different result. 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
*
Asfaw fails to challenge the denial of her request for
protection under the Convention Against Torture. She has
therefore waived appellate review of this claim. See Ngarurih,
371 F.3d at 189 n.7 (finding that failure to raise a challenge
in an opening brief results in abandonment of that challenge);
Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir.
1999) (same).
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