Adembuh v. Mukasey , 261 F. App'x 548 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-1330
PROSPERE CHI ADEMBUH, a/k/a Francis Chubo,
Petitioner,
versus
MICHAEL B. MUKASEY, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals. (A78-977-582)
Submitted: November 6, 2007 Decided: January 7, 2008
Before MICHAEL and GREGORY, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Petition denied by unpublished per curiam opinion.
Danielle Beach-Oswald, BEACH-OSWALD, Washington, D.C., for
Petitioner. M. Jocelyn Lopez Wright, Assistant Director, Brianne
Whelan, Trial Attorney, Office of Immigration Litigation, U.S.
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Prospere Chi Adembuh, a native and citizen of Cameroon,
petitions for review of an order of the Board of Immigration
Appeals (“Board”) adopting and affirming the immigration judge’s
decision denying his applications for asylum, withholding from
removal and withholding under the Convention Against Torture
(“CAT”). Adembuh claims the Board erred in finding his asylum
application was filed late. He further claims the Board’s factual
findings are not supported by substantial evidence. He also claims
the Board’s finding that his asylum application was frivolous is
not supported by the evidence. We deny the petition for review.
An alien applying for asylum must show “by clear and
convincing evidence that the application has been filed within 1
year after the date of the alien’s arrival in the United States.”
8 U.S.C. § 1158(a)(2)(B) (2000). The one-year period begins on the
date of the alien’s last arrival in the United States or April 1,
1997, whichever is later. 8 C.F.R. § 1208.4(a)(2)(ii) (2007). An
asylum application may be considered after the one-year time frame
“if the alien demonstrates to the satisfaction of the Attorney
General either the existence of changed circumstances which
materially affect the applicant’s eligibility for asylum or
extraordinary circumstances relating to the delay in filing an
application within the period specified.” 8 U.S.C.
§ 1158(a)(2)(D). Extraordinary circumstances are “events or
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factors directly related to the failure to meet the 1-year
deadline” and may include ineffective assistance of counsel
“provided that” the alien complies with the requirements set forth
in Matter of Lozada, 19 I. & N. Dec. 637 (B.I.A. 1988), including
the requirement that “[t]he counsel whose integrity or competence
is being impugned has been informed of the allegations leveled
against him or her and given an opportunity to respond.” 8 C.F.R.
§ 1208.4(a)(5) (2007).
Under 8 U.S.C. § 1158(a)(3) (2000), “[n]o court shall
have jurisdiction to review any determination of the Attorney
General under paragraph (2),” which includes both the Attorney
General’s decisions whether an alien has complied with the one-year
time limit and whether there are changed or extraordinary
circumstances excusing the untimeliness. Courts of appeal have
uniformly held this jurisdiction-stripping provision precludes
judicial review not only of all such determinations but also the
merits of the underlying asylum claim. See Chen v. U.S. Dep’t of
Justice, 434 F.3d 144, 151 (2d Cir. 2006) (collecting cases). We
find we are without jurisdiction to review Adembuh’s challenge to
the finding that his asylum application was untimely.
“To qualify for withholding of removal, a petitioner must
show that he faces a clear probability of persecution because of
his race, religion, nationality, membership in a particular social
group, or political opinion.” Rusu v. INS, 296 F.3d 316, 324 n.13
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(4th Cir. 2002) (citing INS v. Stevic, 467 U.S. 407, 430 (1984)).
To qualify for protection under the CAT, a petitioner bears the
burden of demonstrating that “it is more likely than not that he or
she would be tortured if removed to the proposed country of
removal.” 8 C.F.R. § 1208.16(c)(2) (2007). Factual findings by
the Board or the immigration judge “are conclusive unless any
reasonable adjudicator would be compelled to conclude to the
contrary.” 8 U.S.C. § 1252(b)(4)(B) (2000). Furthermore,
credibility findings are reviewed for substantial evidence. A
trier of fact who rejects an applicant’s testimony on credibility
grounds must offer specific, cogent reasons for doing so.
Figeroa v. INS, 886 F.2d 76, 78 (4th Cir. 1989). “Examples of
specific and cogent reasons include inconsistent statements,
contradictory evidence, and inherently improbable testimony.”
Tewabe v. Gonzales, 446 F.3d 533, 538 (4th Cir. 2006) (internal
quotations and citations omitted). This court accords broad,
though not unlimited, deference to credibility findings supported
by substantial evidence. Camara v. Ashcroft, 378 F.3d 361, 367
(4th Cir. 2004). If the immigration judge’s adverse credibility
finding is based on speculation and conjecture rather than specific
and cogent reasoning, it is not supported by substantial evidence.
Tewabe, 446 F.3d at 538. We find after reviewing the record that
substantial evidence supports the Board’s denial of Adembuh’s
request for withholding from removal and relief under the CAT. We
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further find substantial evidence supports the Board’s
frivolousness finding.
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
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