Jingzhe Cui v. Holder

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-1740
JINGZHE CUI,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: January 7, 2010 Decided: February 2, 2010
Before NIEMEYER, MICHAEL, and KING, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Benjamin B. Xue, LAW OFFICES OF BENJAMIN B. XUE, P.C., New York,
New York, for Petitioner. Tony West, Assistant Attorney
General, Ada Bosque, Senior Litigation Counsel, Paul T.
Cygnarowicz, 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Unpublished opinions are not binding precedent in this circuit.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:
Jingzhe Cui, a native and citizen of the People’s
Republic of China who is of Korean ethnicity, 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.
The INA authorizes the Attorney General to confer
asylum on any refugee. 8 U.S.C. § 1158(a) (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) (alteration added); see 8 C.F.R. § 1208.13(a) (2009), and
can establish refugee status based on past persecution in his
native country on account of a protected ground. 8 C.F.R.
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§ 1208.13(b)(1) (2009). Without regard to past persecution, an
alien can establish a well-founded fear of persecution on a
protected ground. Ngarurih v. Ashcroft, 371 F.3d 182, 187 (4th
Cir. 2004). 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 . . . . The
subjective fear [must have] some basis in the reality of the
circumstances and be validated with specific, concrete facts . .
. and it cannot be mere irrational apprehension.” Li, 405 F.3d
at 176 (internal quotation marks and citations omitted).
Furthermore, the alien must show that his claim of past
persecution or well-founded fear of persecution is based upon a
protected ground that “was or will be at least one central
reason” for the persecution. 8 U.S.C. § 1158(b)(1)(B)(i)
(2006).
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
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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
reviewed de novo, “affording appropriate deference to the BIA’s
interpretation of the INA and any attendant regulations.”
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).
When the Board agrees with the immigration judge’s
findings and reasoning and supplements the immigration judge’s
opinion, this court will review both orders. Niang v. Gonzales,
492 F.3d 505, 511 n.8 (4th Cir. 2007).
We find substantial evidence supports the Board’s
finding that Cui did not show that his detention and beating or
the issuance of a summons for his arrest were due to anything
more than the charge that he violated a legitimate Chinese law
prohibiting persons from harboring persons who crossed the
border to enter the country. There was no evidence he was
chosen for detention or prosecution because of a protected
ground. We further agree with the Board that the Ninth
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Circuit’s opinion in Li v. Holder, 559 F.3d 1096 (9th Cir. 2009)
is clearly distinguishable.
We also find substantial evidence supports the finding
that Cui did not show it was more likely than not he will be
tortured when he returns to China. See 8 C.F.R. § 1208.16(c)(2)
(2009).
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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