Turay v. Gonzales

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-2037
RAMATU TURAY, Mother; AHMED ALVIN TURAY, Son,
Petitioners,
versus
ALBERTO R. GONZALES, Attorney General,
Respondent.
No. 06-1168
RAMATU TURAY, Mother; AHMED ALVIN TURAY, Son,
Petitioners,
versus
ALBERTO R. GONZALES, Attorney General,
Respondent.
On Petitions for Review of Orders of the Board of Immigration
Appeals. (A79-497-511; A79-497-517)
Submitted: May 31, 2006 Decided: June 30, 2006
Before MICHAEL, MOTZ, and DUNCAN, Circuit Judges.
No. 05-2037, petition dismissed in part; denied in part; No. 06-
1168, petition denied by unpublished per curiam opinion.
Randall L. Johnson, JOHNSON & ASSOCIATES, P.C., Arlington,
Virginia, for Petitioners. Peter D. Keisler, Assistant Attorney
General, M. Jocelyn Lopez Wright, Assistant Director, Daniel E.
Goldman, Office of Immigration Litigation, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
In these consolidated petitions for review, Ramatu Turay
and her minor son, Ahmed Alvin Turay, natives and citizens of
Sierra Leone, petition for review from the orders of the Board of
Immigration Appeals (“Board”) affirming the immigration judge’s
denial of asylum, withholding of removal, and protection under the
Convention Against Torture as to the Petitioners and the denial of
voluntary departure as to Ramatu Turay (No. 05-2037); and denying
their motion to reopen (No. 06-1168). We dismiss in part and deny
in part the petition for review in No. 05-2037. We deny the
petition for review in No. 06-1168.
Petitioners seek to challenge the Board’s factual finding
that they failed to file their asylum application within one year
of the date of their arrival in the United States. See 8 U.S.C.
§ 1158(a)(2)(B) (2000). We conclude we lack jurisdiction to review
this determination pursuant to 8 U.S.C. § 1158(a)(3) (2000). See
Zaidi v. Ashcroft, 377 F.3d 678, 680-81 (7th Cir. 2004) (collecting
cases); see also Vasile v. Gonzales, 417 F.3d 766, 768 (7th Cir.
2005) (holding that even in light of the REAL ID Act of 2005, these
“factual determinations continue to fall outside the jurisdiction
of the court of appeals entertaining a petition for review”).
Given this jurisdictional bar, we cannot review the Board’s denial
of Petitioners’ asylum claim.
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While we lack jurisdiction to consider the Board’s ruling
on the asylum claim, we retain jurisdiction to consider the denial
of withholding of removal and protection under the Convention
Against Torture. See 8 C.F.R. § 1208.4(a) (2006). “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 (4th Cir. 2002)
(citing INS v. Stevic, 467 U.S. 407, 430 (1984)).
Petitioners challenge the Board’s determinations that
Ramatu Turay’s testimony was not credible and that she filed a
frivolous asylum application. 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) (2000). We
accord broad, though not unlimited, deference to credibility
findings supported by substantial evidence. Camara v. Ashcroft,
378 F.3d 361, 367 (4th Cir. 2004). We will uphold the final agency
determination if it is not “manifestly contrary to law.” Id.Based on our review of the record, we find that
substantial evidence supports the Board’s determination that
Petitioners failed to present a credible claim for withholding of
removal. Accordingly, the Board correctly concluded Petitioners
could not establish their entitlement to withholding of removal.
We further conclude that Turay had sufficient prior notice of the
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consequences of filing a frivolous asylum application and
opportunity to account for any discrepancies or implausible aspects
of her claim, and the Board properly determined Turay knowingly
filed a frivolous asylum application. See 8 U.S.C. § 1158(d)(6)
(2000); 8 C.F.R. § 1208.20 (2006).
We also find that substantial evidence supports the
immigration judge’s finding, affirmed by the Board, that
Petitioners failed to meet the standard for relief under the
Convention Against Torture. To obtain such relief, an applicant
must show 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) (2006). Petitioners failed to make the requisite
showing before the immigration judge.
Petitioners also challenge the Board’s denial of their
motion to reopen. This court reviews the Board’s denial of
reopening with extreme deference and only for an abuse of
discretion. Stewart v. INS, 181 F.3d 587, 595 (4th Cir. 1999).
Such motions are especially disfavored in a removal proceeding,
where “every delay works to the advantage of the deportable alien
who wishes merely to remain in the United States.” INS v. Doherty,
502 U.S. 314, 323 (1992). We have reviewed the administrative
record and find the Board did not abuse its discretion.
Accordingly, we dismiss in part and deny in part the
petition for review in No. 05-2037. We deny the petition for
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review in No. 06-1168. 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.
No. 05-2037 PETITION DISMISSED IN PART;
DENIED IN PART
No. 06-1168 PETITION DENIED
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