Mobombo v. Holder , 403 F. App'x 873 ( 2010 )


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  •                                 UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 10-1619
    BONONO MOBOMBO,
    Petitioner,
    v.
    ERIC H. HOLDER, JR., Attorney General,
    Respondent.
    On Petition for Review of an Order of the Board of Immigration
    Appeals.
    Submitted:   October 21, 2010                 Decided:   December 3, 2010
    Before NIEMEYER, DUNCAN, and WYNN, Circuit Judges.
    Petition denied by unpublished per curiam opinion.
    Joshua A. Moses, JOSHUA MOSES & ASSOCIATES, Silver Spring,
    Maryland, for Petitioner.        Tony West, Assistant Attorney
    General, Ernesto H. Molina, Jr., Assistant Director, Jeffery R.
    Leist,   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    Unpublished opinions are not binding precedent in this circuit.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:
    Bonono Mobombo, a native and citizen of the Democratic
    Republic of the Congo, petitions for review of an order of the
    Board    of   Immigration   Appeals     (“Board”)     dismissing     his    appeal
    from the immigration judge’s decision denying his applications
    for asylum, withholding of removal and withholding under the
    Convention     Against   Torture    (“CAT”)     and     denying    asylum    as   a
    derivative beneficiary based on his wife’s asylee status.                         We
    deny the petition for review.
    Under 
    8 U.S.C. § 1158
    (b)(3) (2006), a spouse of an
    alien    granted   asylum   may    be   granted   the    same     status    if   the
    spouse   accompanied     the   alien    or   followed    to   join   the    alien.
    Under 
    8 C.F.R. § 1208.21
    (c) (2010), the procedure for seeking
    derivative status for a spouse not included in the refugee’s
    asylum application is as follows:
    When a spouse or child of an alien granted asylum is
    in the United States, but was not included in the
    asylee’s    application,    the    asylee   may   request
    accompanying or following-to-join benefits for his/her
    spouse or child by filing for each qualifying family
    member a separate Form I-730, Refugee/Asylee Relative
    Petition, and supporting evidence, with the designated
    Service office, regardless of the status of that
    spouse or child in the United States.           A recent
    photograph of each derivative must accompany the Form
    I-730.    The photograph must clearly identify the
    derivative, and will be made part of the derivative’s
    immigration    record   for    identification   purposes.
    Additionally, a separate Form I-730 must be filed by
    the asylee for each qualifying family member before
    February 28, 2000, or within 2 years of the date in
    which he/she was granted asylum status, whichever is
    2
    later, unless it is determined by the Service that
    this period should be extended for humanitarian
    reasons.
    The Board held that without an approved Form I-730,
    the immigration judge could not grant Mobombo asylum based on
    his wife’s status.               We review legal issues de novo, “affording
    appropriate deference to the [Board]’s interpretation of the INA
    and any attendant regulations.”                    Li Fang Lin           v. Mukasey, 
    517 F.3d 685
    , 691-92 (4th Cir. 2008).                    “[A]s the holder of much of
    the Attorney General’s delegated power, the [Board] should be
    accorded Chevron * deference as it gives ambiguous statutory terms
    concrete           meaning       through       a      process       of      case-by-case
    adjudication.”            Fernandez v. Keisler, 
    502 F.3d 337
    , 344 (4th
    Cir.       2007)    (internal     quotation        marks    omitted).       Because       the
    procedure          of   filing    an   I-730       and     having   it    granted    as    a
    predicate to seeking derivative status is a “creature” of the
    Attorney      General’s      regulations,          “his    interpretation     of     it    is
    . . . controlling unless plainly erroneous or inconsistent with
    the regulation.”             Auer v. Robbins, 
    519 U.S. 452
    , 461 (1997)
    (alteration         added)    (internal    quotation          marks      omitted).        We
    conclude the Board’s interpretation controls in this instance
    and there was no error.
    *
    Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc.,
    
    467 U.S. 837
     (1984).
    3
    Insofar as Mobombo sought asylum and withholding of
    removal     by    filing      his    own       application,        we    find    substantial
    evidence supports the denial of relief.                       The INA authorizes the
    Attorney General to confer asylum on any refugee.                                    
    8 U.S.C. § 1158
    (a) (2006).          It defines a refugee as a person unwilling or
    unable to return to his 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    and
    citations 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 his native country
    on account of a protected ground.                         
    8 C.F.R. § 1208.13
    (b)(1)
    (2010).     “An applicant who demonstrates that he was the subject
    of past persecution is presumed to have a well-founded fear of
    persecution.”          Ngarurih v. Ashcroft, 
    371 F.3d 182
    , 187 (4th Cir.
    2004).
    4
    Without   regard     to    past    persecution,        an       alien    can
    establish   a    well-founded    fear    of    persecution        on    a    protected
    ground.     Ngarurih,     
    371 F.3d at 187
    .     The   well-founded           fear
    standard contains both a subjective and an objective component.
    The objective element requires a showing of specific, concrete
    facts that would lead a reasonable person in like circumstances
    to fear persecution.        Gandziami-Mickhou v. Gonzales, 
    445 F.3d 351
    , 353 (4th Cir. 2006).
    A   determination    regarding      eligibility        for      asylum    or
    withholding of removal is affirmed if supported by substantial
    evidence on the record considered as a whole.                      INS v. Elias-
    Zacarias, 
    502 U.S. 478
    , 481 (1992).               Administrative findings of
    fact, including findings on credibility, 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).
    Furthermore,     “[t]he    agency      decision      that    an    alien      is     not
    eligible for asylum is ‘conclusive unless manifestly contrary to
    the law and an abuse of discretion.’”                Marynenka v. Holder, 
    592 F.3d 594
    , 600 (4th Cir. 2010) (quoting 
    8 U.S.C. § 1252
    (b)(4)(D)
    (2006)).
    5
    In Mobombo’s case, substantial evidence supports the
    finding that he did not have a well-founded fear of persecution.
    We also conclude that the denial of asylum based on humanitarian
    grounds    was     not   an    abuse     of    discretion.        See     
    8 C.F.R. § 208.13
    (b)(1)(iii) (2010).
    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
    6