Sangafio v. Holder

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-2163
SIDWISBERT BANGO SANGAFIO,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: March 25, 2010 Decided: May 14, 2010
Before MICHAEL 1 and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Petition denied by unpublished per curiam opinion.
Robert A. Remes, CARLINER & REMES, P.C., Washington, D.C., for
Petitioner. Tony West, Assistant Attorney General, David V.
Bernal, Assistant Director, Yedidya Cohen, Office of Immigration
Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent.
1
Judge Michael was a member of the original panel but did
not participate in this decision. This opinion is filed by a
quorum of the panel pursuant to 28 U.S.C. § 46(d).
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Sidwisbert Bango Sangafio, a native and citizen of the
Central African Republic (“CAR”), 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 (“CAT”). We
deny the petition for review. 2
Insofar as Sangafio claims that he showed
extraordinary circumstances excusing the one year period in
which to file an asylum application because of his lawful
status, we note he failed to exhaust this claim because he did
not raise it before the Board on appeal. Accordingly, we are
without jurisdiction to consider the claim. See 8 U.S.C.
§ 1252(d)(1) (2006); Massis v. Mukasey, 549 F.3d 631, 638 (4th
Cir. 2008), cert. denied, 130 S. Ct. 736 (2009); Asika v.
Ashcroft, 362 F.3d 264, 267 n.3 (4th Cir. 2004).
2
In his brief, Sangafio does not challenge the Board’s
decision dismissing the appeal from the immigration judge’s
denial of his application for relief under the CAT. As such,
the claim is abandoned. See Yousefi v. INS, 260 F.3d 318, 326
(4th Cir. 2001). Moreover, he did not raise any CAT claim
before the Board, and thus failed to exhaust administrative
remedies with respect to the CAT claim. See 8 U.S.C.
§ 1252(d)(1) (2006).
3
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).
“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) (internal quotation
marks omitted), 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 grant is mandatory.”
Gandziami-Mickhou v. Gonzales, 445 F.3d 351, 353-54 (4th Cir.
2006) (internal citations omitted).
4
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 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[.]
5
8 U.S.C. § 1158(b)(1)(B)(iii) (2006) (emphasis added).
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 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, we reviewed
both decisions. Niang v. Gonzales, 492 F.3d 505, 511 n.8 (4th
Cir. 2007).
6
We find substantial evidence supports the adverse
credibility determination. Specifically, the discrepancies
between Sangafio’s testimony and his National Unity Party
membership cards and his testimony and the affidavits submitted
by friends and relatives. We also note that it was not clear
error to find that Sangafio’s testimony regarding being
persecuted because of his party membership was inconsistent with
the documentary evidence showing that his political party is
part of the CAR government.
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
7