Volcy v. Ashcroft , 115 F. App'x 95 ( 2004 )

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 04-1237
VESTON VOLCY,
Petitioner,
v.
JOHN ASHCROFT, ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Boudin, Chief Judge,
Torruella and Howard, Circuit Judges.
Veston Volcy on brief pro se.
William C. Minick, Office of Immigration Litigation, Peter D.
Keisler, Assistant Attorney General, Civil Division and Christopher
C. Fuller, Senior Litigation Counsel, Office of Immigration
Litigation, on brief for respondent.
December 21, 2004
Per Curiam. Veston Volcy petitions for judicial review
of a decision by the Board of Immigration Appeals (BIA) that
affirmed without opinion the decision of an Immigration Judge (IJ)
denying Volcy's application for asylum, withholding of removal, and
relief under Article 3 of the United Nations Convention Against
Torture (CAT). When the BIA affirms the IJ's decision without
rendering its own opinion, we review the IJ's decision as the
decision of the BIA. Ymeri v. Ashcroft, 387 F.3d 12, 17 (1st Cir.
2004). Upon consideration of the parties' briefs and the record,
we affirm.
The IJ concluded that Volcy was not credible in his
claims of past persecution or fear of future persecution. We
review the finding of credibility under a deferential substantial
evidence standard, Mendes v. INS, 197 F.3d 6, 13 (1st Cir. 1999),
and uphold a denial of asylum unless an applicant puts forth
evidence "so compelling that no reasonable factfinder could fail to
find the requisite fear of persecution." INS v. Elias-Zacarias,
502 U.S. 478, 483-84 (1992). "[T]he IJ must, if he or she chooses
to reject [the petitioner's] testimony as lacking credibility,
offer a specific, cogent reason for [the IJ's] disbelief." Gailius
v. INS, 147 F.3d 34, 47 (1st Cir. 1998) (internal quotation marks
and citation omitted). The IJ's decision adequately details the
reasons for his disbelief, e.g., the discrepancies among Volcy's
various statements, the questionable validity of the KONAKOM ID
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card, and his skepticism whether it was likely that, as Volcy
claims, Volcy would be viewed as a threat to the government and
hunted and harmed for making statements about land reform. The
IJ's finding was sufficiently detailed and supported by substantial
evidence. Volcy's appellate brief does not effectively counter the
IJ's decision and neither his evidence below nor his arguments here
compel a conclusion contrary to that decision.
Because Volcy does not satisfy the less stringent
standard for asylum, a fortiori, he is unable to satisfy the test
for withholding of removal. See Afful v. Ashcroft, 380 F.3d 1, 6
(1st Cir. 2004), petition for cert. filed (U.S. Nov. 3, 2004) (No.
04-7117). Similarly, to obtain relief under CAT, Volcy must show
that it is more likely than not he would be tortured upon return to
his country, a higher burden of proof than an asylum claim, which
requires that he show a well founded fear of persecution. Settenda
v. Ashcroft, 377 F.3d 89, 94 (1st Cir. 2004). Volcy's appellate
brief makes no particular argument addressed to his CAT claim. In
any event, although we have rejected a per se rule that an adverse
credibility determination on asylum automatically defeats an
application under CAT, we have acknowledged that it would doom
some. Settenda v. Ashcroft, 377 F.3d at 95. This is such a case.
The IJ's adverse credibility finding effectively undermines any
part of Volcy's testimony that could serve as the relevant
foundation for a successful claim under CAT.
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Therefore, we affirm the decision denying the application
for asylum, withholding of removal, and relief under CAT. In light
of that affirmance, Volcy's renewed motion to stay removal pending
our consideration of this petition for review is denied as moot.
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