UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-1788
FERNAND TOUSSAINT THOMA NYAM,
Petitioner,
v.
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Petition denied by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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,
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“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
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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
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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
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