Fernand Nyam v. Eric Holder, Jr.

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-1788

FERNAND TOUSSAINT THOMA NYAM,

Petitioner,

ERIC H. HOLDER, JR., Attorney General,

Respondent.

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

Submitted: February 24, 2012 Decided: March 8, 2012

Before NIEMEYER, DIAZ, and FLOYD, Circuit Judges.

Petition denied by unpublished per curiam opinion.

Ronald D. Richey, Law Office of Ronald D. Richey, Rockville,
Maryland, for Petitioner. Tony West, Assistant Attorney
General, M. Jocelyn Lopez Wright, Senior Litigation Counsel,
Stefanie Notarino Hennes, 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Unpublished opinions are not binding precedent in this circuit.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:

Fernand Toussaint Thoma Nyam, a native and citizen of

Cameroon, 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 of removal and withholding under the Convention

Against Torture (“CAT”). Nyam challenges the finding that he

failed to show that the asylum application was timely filed. He

also challenges the adverse credibility finding. We deny the

petition for review.

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

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). Although

§ 1252(a)(2)(D) provides that nothing in § 1252(a)(2)(B), (C),

“or in any other provision of this [Act] . . . which limits or

eliminates judicial review, shall be construed as precluding

review of constitutional claims or questions of law,” this court

has held that the question of whether an asylum application is

untimely or whether the changed or extraordinary circumstances

exception applies “is a discretionary determination based on

factual circumstances.” Gomis, 571 F.3d at 358. Accordingly,

2
“absent a colorable constitutional claim or question of law,

[the court’s] review of the issue is not authorized by

§ 1252(a)(2)(D).” Id. Because Nyam fails to raise a

constitutional claim or a question of law concerning the finding

that he did not bear his burden of proof in this regard, we are

without jurisdiction to review the finding that his asylum

application was untimely.

While this court does not have jurisdiction to

consider the denial of Nyam’s untimely application for asylum,

we retain jurisdiction to consider the denial of his requests

for withholding of removal and protection under the CAT as these

claims are not subject to the one-year time limitation. See 8

C.F.R. § 1208.4(a) (2011).

This court will uphold the Board’s decision unless it

is manifestly contrary to the law and an abuse of discretion.

The standard of review of the agency’s findings is narrow and

deferential. Factual findings are affirmed if supported by

substantial evidence. Substantial evidence exists to support a

finding unless the evidence was such that any reasonable

adjudicator would have been compelled to conclude to the

contrary. Therefore, we review an adverse credibility

determination for substantial evidence and give broad deference

to the Board’s credibility determination. The Board and the

immigration judge must provide specific, cogent reasons for

3
making an adverse credibility determination. We recognize that

omissions, inconsistent statements, contradictory evidence, and

inherently improbable testimony are appropriate reasons for

making an adverse credibility determination. The existence of

only a few such inconsistencies, omissions, or contradictions

can be sufficient for the Board to make an adverse credibility

determination as to the alien’s entire testimony regarding past

persecution. An inconsistency can serve as a basis for an

adverse credibility determination even if it does not go to the

heart of the alien’s claim. 8 U.S.C. § 1158(b)(1)(B)(iii)

(2006); see also Djadjou v. Holder, 662 F.3d 265, 272-74 (4th

Cir. 2011) (stating standard of review). An adverse credibility

finding can support a conclusion that the alien did not

establish past persecution. See Dankam v. Gonzales, 495 F.3d

113, 121-23 (4th Cir. 2007); see also Chen v. U.S. Attorney

Gen., 463 F.3d 1228, 1231 (11th Cir. 2006) (denial of relief can

be based solely upon an adverse credibility finding).

We conclude that substantial evidence supports the

adverse credibility finding. The immigration judge listed

specific and cogent reasons in support of the finding. It was

not an abuse of discretion for the immigration judge and the

Board to find that Nyam’s inconsistencies were critically

important to his claim for relief. We further conclude that the

immigration judge considered the entire record and substantial

4
evidence supports the finding that Nyam’s independent evidence

falls short of overcoming the adverse credibility finding.

Given that the adverse credibility finding raises questions

about the authenticity of Nyam’s claim that he was persecuted,

we conclude that the record does not compel a different result.

In addition, we conclude that substantial evidence supports the

finding that Nyam did not meet his burden of proof to establish

eligibility for relief under the CAT.

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