Jingdong Zheng v. Holder ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-2060
JINGDONG ZHENG,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: February 19, 2010 Decided: March 11, 2010
Before NIEMEYER, GREGORY, and AGEE, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Henry Zhang, ZHANG & ASSOCIATES, P.C., New York, New York, for
Petitioner. Tony West, Assistant Attorney General, Mary Jane
Candaux, Assistant Director, Robbin K. Blaya, 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Unpublished opinions are not binding precedent in this circuit.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:
Jingdong Zheng, a native and citizen of the People’s
Republic of China, 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”). *
The Immigration and Nationality Act (“INA”) authorizes
the Attorney General to confer asylum on any refugee. 8 U.S.C.
§ 1158(a), (b) (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 . . . .” Li v. Gonzales, 405 F.3d
*
Zheng does not challenge the denial of relief under the
CAT. He has therefore waived appellate review of this issue.
See Ngarurih v. Ashcroft, 371 F.3d 182, 189 n.7 (4th Cir. 2004)
(finding that failure to raise a challenge in an opening brief
results in abandonment of that challenge); Edwards v. City of
Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir. 1999) (same).
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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) (2009), 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)
(2009). Without regard to past persecution, an alien can
establish a well-founded fear of persecution on a protected
ground. Ngarurih v. Ashcroft, 371 F.3d 182, 187 (4th Cir.
2004). “Withholding of removal is available under 8 U.S.C.
§ 1231(b)(3) if the alien shows that it is more likely than not
that [his] life or freedom would be threatened in the country of
removal because of [his] race, religion, nationality, membership
in a particular social group, or political opinion.” Gomis v.
Holder, 571 F.3d 353, 359 (4th Cir. 2009), cert. denied, __ S.
Ct. __, 2010 WL 58386 (U.S. Jan. 11, 2010) (No. 09-194). “This
is a more stringent standard than that for asylum . . . . [and],
while asylum is discretionary, if an alien establishes
eligibility for withholding of removal, the grant is mandatory.”
Gandziami-Mickhou v. Gonzales, 445 F.3d 351, 353-54 (4th Cir.
2006) (internal citations omitted) (alteration added).
Credibility findings are reviewed for substantial
evidence. A trier of fact who rejects an applicant’s testimony
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on credibility grounds must offer a “specific, cogent reason”
for doing so. Figeroa v. INS, 886 F.2d 76, 78 (4th Cir. 1989)
(internal quotation marks omitted). “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 and citations omitted). Likewise, “the immigration judge
cannot reject documentary evidence without specific, cogent
reasons why the documents are not credible.” Kourouma v.
Holder, 588 F.3d 234, 241 (4th Cir. 2009).
The REAL ID Act of 2005 also amended the law regarding
credibility determinations for applications for asylum and
withholding of removal filed after May 11, 2005, as is the case
here. Such determinations are to be made based on the totality
of the circumstances and all relevant factors, including:
the demeanor, candor, or responsiveness of the
applicant or witness, the inherent plausibility of the
applicant’s or witness’s account, the consistency
between the applicant’s or witness’s written and oral
statements (whenever made and whether or not under
oath, and considering the circumstances under which
the statements were made), the internal consistency of
each such statement, the consistency of such
statements with other evidence of record . . . . and
any inaccuracies or falsehoods in such statements,
without regard to whether an inconsistency,
inaccuracy, or falsehood goes to the heart of the
applicant’s claim[.]
8 U.S.C. § 1158(b)(1)(B)(iii) (2006) (emphasis added).
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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. 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 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).
Because the Board added its own reasoning when it adopted the
immigration judge’s decision, this court will review both
decisions. Niang v. Gonzales, 492 F.3d 505, 511 n.8 (4th Cir.
2007).
We find substantial evidence supports the adverse
credibility finding. Clearly, there were many critical
discrepancies between Zheng’s and his wife’s testimonies. We
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further find no error with respect to the immigration judge
seeking more reasonably available corroborative evidence.
Because of the adverse credibility finding and the lack of
corroboration, the record does not compel a different result
with respect to the denial of asylum or withholding of removal.
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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