Ruo Mei Wu v. Holder

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-1155
RUO MEI WU,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: March 18, 2010 Decided: April 9, 2010
Before NIEMEYER, MOTZ, and DUNCAN, Circuit Judges.
Petition denied by unpublished per curiam opinion.
John E. Gallagher, Catonsville, Maryland, for Petitioner. Tony
West, Assistant Attorney General, James E. Grimes, Senior
Litigation Counsel, Gregory M. Kelch, 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Unpublished opinions are not binding precedent in this circuit.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:
Ruo Mei Wu, 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 her appeal from the
immigration judge’s order denying her applications for asylum,
withholding from removal and withholding under the Convention
Against Torture (“CAT”). Finding substantial evidence supports
the adverse credibility finding and the record does not compel a
different result, 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), (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
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
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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). “An applicant who demonstrates that he was the subject
of past persecution is presumed to have a well-founded fear of
persecution.” Ngarurih v. Ashcroft, 371 F.3d 182, 187 (4th Cir.
2004). Without regard to past persecution, an alien can
establish a well-founded fear of persecution on a protected
ground. Id. A well-founded fear of persecution in the absence
of past persecution has both subjective and objective
components, meaning that the applicant is subjectively afraid
and that the fear is objectively well-founded. A claim based on
past persecution, however, does not require the applicant to
show he or she subjectively fears persecution in the country of
origin. Lin-Jian v. Gonzales, 489 F.3d 182, 188 (4th Cir. 2007)
(internal quotation marks and citation omitted).
“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 her life or freedom would be threatened in the country of
removal because of her 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, 130 S.
Ct. 1048 (2010). “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
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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
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).
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
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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 as it related to the subjective component of
Wu’s claim that she had a well-founded fear of persecution. In
addition, we find substantial evidence supports the Board’s
finding that Wu did not show any likelihood that she or
similarly situated Chinese will be persecuted in Fujian Province
as a result of the birth of children in the United States. We
will not review Wu’s claim that the immigration judge’s finding
that her statements made during the 2001 credible fear interview
were not made under duress or under an immediate fear was
without support in the record because she did not raise this
claim on appeal to the Board. See Massis v. Mukasey, 549 F.3d
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631, 638, 640 (4th Cir. 2008), cert. denied, 130 S. Ct. 736(2009). We also note Wu does not challenge the denial of relief
under the CAT, which was determined notwithstanding the adverse
credibility finding. Therefore, the claim is abandoned. See
Yousefi v. INS, 260 F.3d 318, 326 (4th Cir. 2001).
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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