Qing Lin v. Eric Holder, Jr. , 500 F. App'x 241 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1624
QING LIN,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: December 4, 2012 Decided: December 19, 2012
Before NIEMEYER, AGEE, and THACKER, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Adedayo O. Idowu, LAW OFFICES OF ADEDAYO O. IDOWU, PLLC, New
York, New York, for Petitioner. Stuart F. Delery, Acting
Assistant Attorney General, Thomas B. Fatouros, Senior
Litigation Counsel, Jeffrey R. Meyer, 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Unpublished opinions are not binding precedent in this circuit.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:
Qing Lin, a native and citizen of the People’s
Republic of China, petitions for review of an order of the Board
of Immigration Appeals (“Board”) sustaining the Attorney
General’s appeal from the immigration judge’s order granting
Lin’s application for asylum. The Board found no clear error
with the immigration judge’s adverse credibility finding or the
finding that Lin failed to show past persecution, but vacated
the immigration judge’s finding that Lin had a well-founded fear
of persecution and ordered him removed. We deny the petition
for review.
The Immigration and Nationality Act (“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). An
alien “bear[s] the burden of proving eligibility for asylum.”
Naizgi v. Gonzales, 455 F.3d 484, 486 (4th Cir. 2006), 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) (2012). “An applicant who demonstrates that he
was the subject of past persecution is presumed to have a well-
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founded fear of persecution.” Ngarurih v. Ashcroft, 371 F.3d
182, 187 (4th Cir. 2004).
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). Legal issues are
reviewed 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). 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)).
For asylum applications filed after the passage of the
REAL ID Act of 2005, a trier of fact, “considering the totality
of the circumstances and all relevant factors,” may base a
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credibility determination on any inconsistency, inaccuracy, or
falsehood “without regard to whether [it] goes to the heart of
the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii) (2006).
Thus, “an [immigration judge’s] adverse credibility
determination need no longer rest solely on those matters
fundamental to an alien’s claim for relief under the INA.”
Singh v. Holder, 699 F.3d 321, 329 (4th Cir. 2012). “[I]n
evaluating an asylum applicant’s credibility, an [immigration
judge] may rely on omissions and inconsistencies that do not
directly relate to the applicant’s claim of persecution as long
as the totality of the circumstances establish that the
applicant is not credible.” Xiu Xia Lin v. Mukasey, 534 F.3d
162, 164 (2d Cir. 2008).
This court reviews credibility findings for
substantial evidence. A trier of fact who rejects an
applicant’s testimony on credibility grounds must offer
“specific, cogent reason[s]” for doing so. Figeroa v. INS, 886
F.2d 76, 78 (4th Cir. 1989); see also Singh, 699 F.3d at 329
(the more flexible approach to credibility determinations does
not alter the requirement that the immigration judge offer
specific and cogent reasons). “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 quotation marks
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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, however, it is not supported by substantial
evidence. Tewabe, 446 F.3d at 538.
We conclude that the immigration judge offered
specific and cogent reasons to support the adverse credibility
finding, particularly the evidence showing an inconsistency
regarding why Lin came to the United States and inconsistent
testimony between Lin and his witness regarding when Lin was
introduced to Christianity. The record does not compel a
different result. Because Lin’s testimony was found not
credible and there was no independent evidence supporting the
finding that he was persecuted, we conclude that substantial
evidence supports the finding that Lin did not establish past
persecution.
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
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to fear persecution. Gandziami-Mickhou v. Gonzales, 445 F.3d
351, 353 (4th Cir. 2006). “The subjective component can be met
through the presentation of candid, credible, and sincere
testimony demonstrating a genuine fear of persecution . . . .
[It] must have some basis in the reality of the circumstances
and be validated with specific, concrete facts . . . and it
cannot be mere irrational apprehension.” Qiao Hua Li v.
Gonzales, 405 F.3d 171, 176 (4th Cir. 2005) (internal quotation
marks and citations omitted).
Lin need not show he would be individually targeted
for persecution if he shows that there is “a pattern or practice
in his or her country of nationality of persecution of a group
of persons similarly situated to the applicant on account of
race, religion, nationality, membership in a particular social
group, or political opinion.” 8 C.F.R. § 1208.13(b)(2)(iii)
(2012). Lin must show that the persecution is “thorough or
systemic.” Yong Hao Chen v. INS, 195 F.3d 198, 203 (4th Cir.
1999); see also Ngure v. Ashcroft, 367 F.3d 975, 991 (8th Cir.
2004) (to be a pattern or practice of persecution, the
persecution must be “systemic, pervasive or organized”). The
persecution of unregistered church members must be so widespread
that there is a reasonable possibility of persecution.
Sugiarto v. Holder, 586 F.3d 90, 97 (1st Cir. 2009).
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We conclude that substantial evidence supports the
finding that Lin did not show that there was a pattern or
practice of persecuting members of unregistered churches to such
a degree that persons in Lin’s position face a reasonable
possibility of persecution.
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
this court and argument would not aid the decisional process.
PETITION DENIED
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