Diallo v. INS

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
SALIOU DIALLO; AISSATOU T. DIALLO,
Petitioner,
v.
No. 98-2429
U.S. IMMIGRATION & NATURALIZATION
SERVICE,
Respondent.
On Petition for Review of an Order
of the Board of Immigration Appeals.
(A29-695-403)
Submitted: March 9, 1999
Decided: April 1, 1999
Before LUTTIG and MICHAEL, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Petition denied by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Bokwe G. Mofor, IMMIGRATION ASSISTANCE CENTER, INC.,
Silver Spring, Maryland, for Petitioner. Frank W. Hunger, Assistant
Attorney General, David M. McConnell, Assistant Director, Michelle
E. Gorden, Office of Immigration Litigation, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Saliou Diallo and his wife, Aissatou Tafsir Diallo, petition for
review of a final order of the Board of Immigration Appeals (Board)
denying Saliou Diallo's application for asylum and withholding of
deportation. Because substantial evidence supports the Board's deci-
sion, we affirm.
Petitioners, natives and citizens of Guinea, entered the United
States in 1990 and 1991 as non-immigrant visitors. Both overstayed
their visas and in July 1996, the Immigration and Naturalization Ser-
vice (INS) issued an order to show cause why they should not be
deported. Saliou Diallo then filed an application for asylum and with-
holding of deportation. In his application for asylum and accompany-
ing affidavit, Diallo alleged that he and his family suffered
persecution on account of their ethnic background and political oppo-
sition to the ruling Guinean government. Diallo described how in
1975 he was arrested, beaten and detained for four days because the
government erroneously suspected him of being affiliated with a
political organization that had revolted against the government. When
a soldier at the military prison recognized the mistake, Diallo stated
that his captors freed him without explanation. Diallo further asserted
that on account of his ethnic background the government revoked his
scholarship when he resisted its efforts to force him to study social
science. The government then forced him to teach against his wishes
but he ultimately quit without incident. Thereafter the government
repeatedly interfered with Diallo's efforts to run a business by extort-
ing money and continually threatening to arrest him without cause.
On one occasion the government imprisoned Diallo for a month, dur-
ing which he was beaten and tortured. He was released only after pay-
ing a substantial bribe. In a separate incident Diallo was again
arrested and forced to pay money to the police to avoid incarceration.
Fearing continued oppression on the basis of his ethnicity, Diallo fled
Guinea in 1990.
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Following a hearing, the Immigration Judge (IJ) found that Diallo's
claims of persecution lacked credibility and issued a decision denying
him and his wife asylum and withholding of deportation but granting
voluntary departure. The IJ based her decision on numerous material
inconsistencies among Diallo's asylum application, his direct testi-
mony, and his testimony on cross-examination. Petitioners timely
appealed to the Board. The Board dismissed the appeal, also finding
that the claim lacked credibility due to significant discrepancies in the
record. This appeal followed.
To establish eligibility for a grant of asylum, an alien must demon-
strate that he is a "refugee" within the meaning of the Immigration
and Nationality Act (Act). The Act defines a refugee as a person
unwilling or unable to return to his native country"because of perse-
cution or a well-founded fear of persecution on account of race, reli-
gion, nationality, membership in a particular social group, or political
opinion." 8 U.S.C.A. § 1101(a)(42)(A) (West Supp. 1996); see M.A.
v. United States Immigration & Naturalization Service, 899 F.2d 304,
307 (4th Cir. 1990) (en banc). The "well-founded fear of persecution"
standard contains both a subjective and an objective component. The
subjective element requires that the applicant present "``candid, credi-
ble, and sincere testimony' demonstrating a genuine fear of persecu-
tion." Berroteran-Melendez v. INS, 955 F.2d 1251, 1256 (9th Cir.
1992); see Figeroa v. INS, 886 F.2d 76, 79 (4th Cir. 1989). The objec-
tive element requires a showing of specific, concrete facts that would
lead a reasonable person in like circumstances to fear persecution. See
Huaman-Cornelio v. Board of Immigration Appeals, 979 F.2d 995,
999-1000 (4th Cir. 1992). Eligibility for asylum can also be based on
grounds of past persecution alone even though there is "``no reason-
able likelihood of present persecution.'" Baka v. INS, 963 F.2d 1376,
1379 (10th Cir. 1992) (quoting Rivera-Cruz v. INS, 948 F.2d 962, 969
(5th Cir. 1991)). To establish such eligibility, an alien must show past
persecution so severe that repatriation would be inhumane. Id.The standard for withholding of deportation is more stringent than
that for asylum. INS v. Cardoza-Fonseca, 480 U.S. 421, 431-32
(1987). To qualify for withholding of deportation, an applicant must
demonstrate a "clear probability of persecution." Id. at 430.
The Board has the power to review an IJ's findings de novo, to
make its own findings even as to matters of credibility, and to assess
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the legal sufficiency of the evidence. Huaman-Cornelio, 979 F.2d at
998. Findings of fact by the Board are reviewed by this court under
the deferential substantial evidence standard and will not be reversed
unless the record compels contrary findings. INS v. Elias-Zacarias,
502 U.S. 478, 481 (1992).
Petitioners contend that the Board erred in dismissing their appeal
because they demonstrated both past persecution and a well-founded
fear of persecution due to their ethnic background and political opin-
ion. They maintain that the evidence in its entirety compels a finding
that they qualified for asylum. In agreeing with and adopting the IJ's
decision, the Board noted important discrepancies between Diallo's
written application and his testimony at the hearing. The Board cited
contradictory information from Diallo about the length of his deten-
tion following his arrests, his treatment during his detention, and the
circumstances of his release. In addition, Diallo claimed in his asylum
application that he faced persecution on account of his political
beliefs and ethnic background. At his hearing, however, his testimony
suggested that the government mistreated him based on his unwilling-
ness to continue a particular course of study and his operation of a
commercial enterprise with a Belgian national. Although Diallo's eth-
nic background may have been a factor in the government's interfer-
ence with his educational plans and business venture, his inconsistent
presentation of the events pertinent to his asylum application supports
the Board's adverse credibility finding.
Because the record contains substantial evidence supporting the
Board's determination that Petitioners failed to meet their statutory
burden of demonstrating eligibility for asylum, we must uphold the
Board's decision. See Huaman-Cornelio, 979 F.2d at 999. Accord-
ingly, we deny the petition for review. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.
PETITION DENIED
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