Acharya v. Holder

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-1561
HEMRAJ ACHARYA,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: March 31, 2011 Decided: April 21, 2011
Before KING, GREGORY, and DAVIS, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Arslan Asghar Chaudhary, LAW OFFICE OF ARSLAN CHAUDHARY,
Tarzana, California, for Petitioner. Tony West, Assistant
Attorney General, Leslie McKay, Assistant Director, Kelly J.
Walls, 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Unpublished opinions are not binding precedent in this circuit.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:
Hemraj Acharya, a native and citizen of Nepal,
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 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) (2010), 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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(2010). “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 trier of fact who rejects an applicant’s testimony
on credibility grounds must offer “specific, cogent reason[s]”
for doing so. Figeroa v. INS, 886 F.2d 76, 78 (4th Cir. 1989).
“Examples of specific and cogent reasons include inconsistent
statements, contradictory evidence, and inherently improbable
testimony . . . .” Tewabe v. Gonzales, 446 F.3d 533, 538 (4th
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Cir. 2006) (internal quotation marks and citations omitted).
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).
The REAL ID Act of 2005 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.” 8 U.S.C. § 1158(b)(1)(B)(iii) (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.” 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
adverse credibility finding. “Inconsistent statements and
contradictory evidence qualify as cogent reasons that could
support an adverse credibility finding.” Dankam v. Gonzales,
495 F.3d 113, 121 (4th Cir. 2007) (concluding that inconsistent
dates regarding an arrest could support an adverse credibility
finding) (internal quotation marks omitted). The immigration
judge was not obligated to accept Acharya’s excuse that the
discrepancies were merely mistakes. Id. at 122. We further
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conclude that substantial evidence supports the alternative
finding, that even assuming Acharya was credible, he failed to
show that he was persecuted or had a well founded fear of
persecution on account of a protected ground. *
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
*
Acharya does not challenge the denial of relief under the
CAT. Accordingly, he has waived review by this court. See
Ngarurih v. Ashcroft, 371 F.3d 182, 189 n.7 (4th Cir. 2004);
Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir.
1999).
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