Kassahun Asfaw v. Loretta Lynch

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1672
KASSAHUN ASFAW,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: April 13, 2015 Decided: May 26, 2015
Before WYNN and DIAZ, Circuit Judges, and DAVIS, Senior Circuit
Judge.
Petition denied by unpublished per curiam opinion.
Alan M. Parra, LAW OFFICE OF ALAN M. PARRA, for Petitioner.
Joyce R. Branda, Acting Assistant Attorney General, Lyle Davis
Jentzer, Alison Marie Igoe, Senior Counsels for National
Security, 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Unpublished opinions are not binding precedent in this circuit.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:
Kassahun Asfaw, a native and citizen of Ethiopia, petitions
for review of an order of the Board of Immigration Appeals
(“Board”) dismissing his appeal from the immigration judge’s
(“IJ”) order denying his applications for asylum, withholding of
removal, and withholding under the Convention Against Torture
(“CAT”). The IJ found that Asfaw’s testimony was not credible
and that he was not eligible for asylum or withholding of
removal under 8 U.S.C. § 1158(b)(2)(A)(i) (2012), and 8 U.S.C.
§ 1231(b)(3)(B)(i) (2012). 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) (2012). 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) (2012). An
applicant for relief from removal bears the burden of
establishing eligibility for relief. 8 C.F.R. § 1240.8(d)
(2014); Quitanilla v. Holder, 758 F.3d 570, 579 (4th Cir. 2014).
When the evidence indicates that there are grounds for the
mandatory denial of relief, the alien has the burden of proving
by a preponderance of the evidence that the bar to relief does
not apply. 8 C.F.R. § 1240.8(d); Quitanilla, 758 F.3d at 579.
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An alien who is found to have “ordered, incited, assisted, or
otherwise participated in the persecution of any person on
account of race, religion, nationality, membership in a
particular social group, or political opinion,” is not eligible
for asylum or withholding of removal. 8 U.S.C.
§§ 1158(b)(2)(A)(i), 1231(b)(3)(B)(i).
We review issues of law de novo and factual issues under
the substantial evidence standard. Pastora v. Holder, 737 F.3d
902, 905 (4th Cir. 2013). Thus, adverse credibility findings
are reviewed for substantial evidence. Figeroa v. INS, 886 F.2d
76, 78 (4th Cir. 1989). A trier of fact who rejects an
applicant’s testimony on credibility grounds must offer
“specific, cogent reason[s]” for doing so. Id. (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 omitted). 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). The IJ may not rely on “‘speculation, conjecture, or an
otherwise unsupported personal opinion’ to discredit an
applicant’s testimony or [his] corroborating evidence.”
Marynenka v. Holder, 592 F.3d 594, 601 (4th Cir. 2010) (quoting
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Tewabe, 446 F.3d at 538). When the Board adopts and affirms the
IJ’s decision, and supplements it with its own opinion, as in
this case, we review both decisions. Cordova v. Holder, 759
F.3d 332, 337 (4th Cir. 2014).
We conclude that substantial evidence supports the adverse
credibility finding. Asfaw’s testimony was clearly inconsistent
with statements he made to the asylum officer. We further
conclude that the IJ did not err by not crediting Asfaw’s
explanation for the inconsistencies. See Hui Pan v. Holder, 737
F.3d 921, 930 (4th Cir. 2013).
Substantial evidence also supports the IJ’s finding that
during Asfaw’s employment with the Ministry of the Interior for
the Ethiopian government during the Mengistu regime, Asfaw
assisted in the persecution of others. The evidence clearly
indicates that the “persecutor bar” could apply to Asfaw’s
applications for asylum and withholding of removal. Pastora,
737 F.3d at 906. Our consideration of Asfaw’s testimony and his
statements to the asylum officer convinces us that Asfaw failed
to show by a preponderance of the evidence that the persecutor
bar did not apply to him. Id. We therefore find no error with
the determination that Asfaw was not statutorily eligible for
asylum or withholding of removal.
To qualify for protection under the CAT, an alien bears the
burden of proof of showing “it is more likely than not that he
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or she would be tortured if removed to the proposed country of
removal.” 8 C.F.R. § 1208.16(c)(2) (2014). To state a prima
facie case for relief, an alien must show that he or she will be
subject to “severe pain or suffering, whether physical or mental
. . . by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an
official capacity.” 8 C.F.R. § 1208.18(a)(1) (2014); see
Saintha v. Mukasey, 516 F.3d 243, 246 & n.2 (4th Cir. 2008).
The applicant need not prove the torture would be inflicted on
account of a protected ground. Dankam v. Gonzales, 495 F.3d
113, 116 (4th Cir. 2007). We review for substantial evidence
the denial of relief under the CAT, id. at 124, and we conclude
that substantial evidence supports the finding that Asfaw did
not establish that it was more likely than not that he will be
tortured if he returns to Ethiopia.
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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