Bolgayev v. Holder

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-2144
OBID BOLGAYEV,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: May 19, 2011 Decided: May 27, 2011
Before GREGORY, DUNCAN, and WYNN, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Elizaveta Krukova, Falls Church, Virginia, for Petitioner. Tony
West, Assistant Attorney General, Keith I. McManus, Senior
Litigation Counsel, Brendan P. Hogan, 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Unpublished opinions are not binding precedent in this circuit.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:
Obid Bolgayev, a native and citizen of Uzbekistan,
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
from removal and withholding under the Convention Against
Torture. 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). The INA 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. . . .” Qiao Hua 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) (2011), 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)
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(2011). “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. 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 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, 405 F.3d at 176(internal quotation marks and citations omitted).
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
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reviewed de novo, “affording appropriate deference to the BIA’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)).
We conclude that substantial evidence supports the
finding that Bolgayev failed to show he was detained on account
of a protected ground. See Saldarriaga v. Gonzales, 402 F.3d
461, 466 (4th Cir. 2005). The record does not compel a finding
that Bolgayev was detained and persecuted because he was
attempting to expose corruption within the military or because
of a political opinion. We further conclude substantial
evidence supports the finding that Bolgayev did not have a well-
founded fear of persecution on account of a protected ground.
Bolgayev’s political activities after his military discharge
were minimal and there was no significant evidence that the
government’s security forces were interested in him. By his own
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testimony, Bolgayev failed to show he left Uzbekistan out of
some fear that he may be persecuted. We also conclude
substantial evidence supports the denial of asylum on
humanitarian grounds. It does not appear he was eligible for
humanitarian asylum. See 8 C.F.R. § 208.13(b)(1)(iii) (2011).
Furthermore, his past persecution was not so severe or frequent
as to compel such relief. See Mambwe v. Holder, 572 F.3d 540,
549 (8th Cir. 2009).
Finally, we conclude substantial evidence supports the
denial of relief under the CAT. Bolgayev failed to show that it
is more likely than not that he will be tortured when he returns
to Uzbekistan. See 8 C.F.R. § 1208.18(a)(1) (2011); see
Saintha v. Mukasey, 516 F.3d 243, 246 & n.2 (4th Cir. 2008).
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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