UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-1726
ENANU ABERA,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Argued: October 26, 2011 Decided: November 8, 2011
Before WILKINSON, MOTZ, and DUNCAN, Circuit Judges.
Dismissed in part and denied in part by unpublished per curiam
opinion.
ARGUED: Alan M. Parra, LAW OFFICE OF ALAN M. PARRA, Silver
Spring, Maryland, for Petitioner. Hillel Ryder Smith, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
ON BRIEF: Tony West, Assistant Attorney General, Civil Division,
Greg D. Mack, Senior Litigation Counsel, UNITED STATES
DEPARTMENT OF JUSTICE, Office of Immigration Litigation,
Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Enanu Abera, an Ethiopian citizen of Amhara ethnicity,
petitions for review of an order of the Board of Immigration
Appeals (BIA) affirming the decision of the immigration judge
(IJ) denying Abera’s application for asylum and withholding of
removal. Abera contends that the BIA erred in: (1) determining
that she failed to establish changed circumstances excusing her
untimely asylum application, and (2) denying withholding based
on an erroneous adverse credibility determination. For the
reasons that follow, we dismiss Abera’s asylum claim and deny
her claim for withholding of removal.
I.
We begin by recounting the basic facts as described by
Abera at her hearing before the IJ. Abera testified that while
she was living in Ethiopia, government forces twice arrested and
detained her. Her first detention, in 1996, lasted two and a
half months and involved four interrogations and repeated
threats and insults. Her government captors accused her of
being a member of the All Amharic People’s Organization (AAPO)
and fomenting political instability. Though Abera denied these
claims, she openly criticized the 1995 national election as
undemocratic. Abera joined the AAPO upon her release.
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Abera testified that government forces again arrested her
in April 2001, detaining her for nineteen days, interrogating
her twice, and beating her with rubber police batons. They
accused her of attempting to overthrow the government and
released her with a warning that further political activity
would cause her to “rot in prison.” Soon after her release in
2001, Abera and her husband left Ethiopia and arrived in the
United States on nonimmigrant tourist visas. Her husband filed
for asylum within one year, listing Abera as a derivative
applicant. Abera testified that since the time of her arrival
in the United States, she has been involved in Kinijit (a
coalition incorporating the AAPO) by making financial
contributions, attending meetings, and conducting outreach.
Abera also testified regarding persecution of her family.
Prior to 2001, Ethiopian government forces imprisoned Abera’s
husband for nine years for his affiliation with the prior
regime. Since Abera’s departure, her son has been arrested for
his Kinijit involvement. Finally, in 2004, Abera learned that
government forces had arrested and detained her sister.
Shortly after learning of her sister’s arrest, Abera filed
her own application seeking asylum, withholding of removal, and
protection under the Convention Against Torture (CAT). Her
husband’s application remained pending at the time. Because
Abera’s asylum application was not filed within one year of her
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arrival, she attempted to demonstrate “changed circumstances”
justifying her untimely application. The IJ found that Abera
had not demonstrated changed circumstances because she presented
conflicting accounts as to why she decided to file her 2004
application –- at times citing her sister’s arrest and at other
times asserting that she became frustrated with the delay of her
husband’s application. The IJ also found that Abera was not
credible and therefore did not meet her burden of establishing
eligibility for withholding and CAT relief.
The BIA affirmed, concluding (1) Abera failed to show
changed circumstances justifying her untimely filing for asylum
and (2) the IJ’s adverse credibility determination (which formed
the basis of denial of withholding and CAT relief) was not
clearly erroneous. Abera now petitions for review in this
court, challenging only the denial of asylum and withholding of
removal.
II.
In order to qualify for asylum, an applicant must
demonstrate by clear and convincing evidence that her
application was filed within one year of arrival in the United
States. 8 U.S.C. § 1158(a)(2)(B). An untimely application may
be considered, however, when the applicant demonstrates “either
the existence of changed circumstances which materially affect
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the applicant’s eligibility for asylum or extraordinary
circumstances relating to the delay in filing an application.”
8 U.S.C. § 1158(a)(2)(D). Acknowledging that her application is
untimely, Abera asserts that her sister’s 2004 arrest and
detention qualifies as a changed circumstance.
8 U.S.C. § 1158(a)(3) expressly provides that “[n]o court
shall have jurisdiction to review any determination of the
Attorney General under [§ 1158(a)(2)].” This includes both
“whether an alien has complied with the one-year time limit and
whether there are changed or extraordinary circumstances
excusing the delay.” Gomis v. Holder, 571 F.3d 353, 358 (4th
Cir. 2009). Though the REAL ID Act of 2005 provides that courts
are not precluded from reviewing “constitutional claims or
questions of law,” see 8 U.S.C. § 1252(a)(2)(D), “absent a
colorable constitutional claim or question of law” courts are
jurisdictionally barred from reviewing a discretionary
determination of changed circumstances. Gomis, 571 F.3d at 358.
Abera claims that the IJ and BIA erred as a matter of law
by failing to consider whether her sister’s 2004 arrest
constitutes a changed circumstance. The record, however,
demonstrates that the IJ considered the evidence regarding
Abera’s sister. The IJ concluded that Abera had “not asserted a
clear reason” for delaying her application. Similarly, the BIA
was unconvinced by Abera’s “changing reasons.” Accordingly,
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Abera does not present a colorable question of law and instead
seeks our review of whether she demonstrated a changed
circumstance. Her claim thus falls squarely within
§ 1158(a)(3)’s jurisdictional bar. We therefore dismiss this
portion of her petition for review.
III.
Next, Abera challenges the denial of her application for
withholding of removal under 8 U.S.C. § 1231(b)(3). An
application for withholding of removal “carries a higher
standard of proof” than an asylum claim, Camara v. Ashcroft, 378
F.3d 361, 367 (4th Cir. 2004), but is not subject to an asylum
claim’s one-year statutory time limit. In order to qualify for
withholding of removal, an applicant must demonstrate by a
“clear probability” that if removed her “life or freedom would
be threatened . . . because of [her] race, religion,
nationality, membership in a particular social group, or
political opinion.” 8 U.S.C. § 1231(b)(3)(A). “Clear
probability” means “more likely than not” that the alien would
be subject to persecution upon removal. Camara, 378 F.3d at
370. A determination regarding eligibility for withholding will
be affirmed if supported by substantial evidence on the record
as a whole. See INS v. Elias–Zacarias, 502 U.S. 478, 481
(1992).
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Abera primarily contends that the IJ erred in making an
adverse credibility determination. Administrative findings of
fact, including adverse credibility determinations, are
generally considered “conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.”
8 U.S.C. § 1252(b)(4)(B). We therefore accord broad but “not
absolute” deference to credibility findings supported by
substantial evidence. Camara 378 F.3d at 367. While we will
not uphold an adverse credibility finding based on speculation
or conjecture, Tewabe v. Gonzales, 446 F.3d 533, 538 (4th Cir.
2006), or “illusory inconsistencies,” Zuh v. Mukasey, 547 F.3d
504, 508 (4th Cir. 2008), we defer to “specific and cogent
reasons includ[ing] inconsistent statements, contradictory
evidence, and inherently improbable testimony.” Tewabe, 446
F.3d at 538 (internal quotation marks omitted).
Having reviewed the record and the IJ’s explanation of the
adverse credibility finding, we cannot say that the evidence
“compels” a contrary conclusion. In particular, Abera’s
inconsistent testimony regarding her husband’s role in the
previous Ethiopian regime and her omission of any mention of her
husband’s mistreatment from her initial affidavit are specific,
cogent reasons relied on by the IJ to support the adverse
credibility finding.
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Adverse credibility notwithstanding, an application for
withholding requires consideration of an applicant’s remaining
independent evidence. Failure to consider such evidence is
reversible error. See Camara, 378 F.3d at 370-71; see also Jian
Tao Lin v. Holder, 611 F.3d 228, 237 & n.9 (4th Cir. 2010).
Abera asserts that the IJ erred in this manner by failing to
consider the totality of the evidence corroborating her claims
of past persecution, and the evidence of her ongoing political
activities inside the United States. The record, however,
demonstrates that the IJ adequately considered the evidence
presented. In sum, we deny Abera’s petition to the extent she
seeks withholding of removal because we conclude that
substantial evidence supports the eligibility determination and
the ultimate denial of withholding.
IV.
For the foregoing reasons, Abera’s petition for review is
DISMISSED IN PART AND DENIED IN PART.
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