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Li v. Gonzales, 05-1358 (2006)

Court: Court of Appeals for the Fourth Circuit Number: 05-1358 Visitors: 23
Filed: Jul. 11, 2006
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 05-1358 JING YUN LI, Petitioner, versus ALBERTO R. GONZALES, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. (A95-462-098) Submitted: November 18, 2005 Decided: July 11, 2006 Before WILKINSON, LUTTIG,* and GREGORY, Circuit Judges. Petition denied by unpublished per curiam opinion. Matthew L. Guadagno, Kerry W. Bretz, Jules E. Coven, BRETZ & COVEN, L.L.P., New York, New York
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                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-1358



JING YUN LI,

                                                        Petitioner,

          versus


ALBERTO R. GONZALES, Attorney General,

                                                        Respondent.


On Petition for Review of an Order of the Board of Immigration
Appeals. (A95-462-098)


Submitted:   November 18, 2005             Decided:   July 11, 2006


Before WILKINSON, LUTTIG,* and GREGORY, Circuit Judges.


Petition denied by unpublished per curiam opinion.


Matthew L. Guadagno, Kerry W. Bretz, Jules E. Coven, BRETZ & COVEN,
L.L.P., New York, New York, for Petitioner. Rod J. Rosenstein,
United States Attorney, Ariana Wright Arnold, Assistant United
States Attorney, Baltimore, Maryland, for Respondent.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).



     *
      Judge Luttig 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).
PER CURIAM:

           Jing   Yun   Li,   a    native      and   citizen    of   the   People’s

Republic of China, petitions for review of the Board of Immigration

Appeals (“Board”) order affirming the immigration judge’s decision

to deny her applications for asylum, withholding from removal and

protection under the Convention Against Torture.                      We deny the

petition for review.

           The INA authorizes the Attorney General to confer asylum

on any refugee.    8 U.S.C. § 1158(a) (2000).             It defines a refugee

as a person unwilling or unable to return to her 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)

(2000).

           An applicant can establish refugee status based on past

persecution in her native country on account of a protected ground.

8 C.F.R. § 1208.13(b)(1) (2005).            “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).          This presumption can be rebutted on a

finding of a fundamental change of circumstances so that the alien

no longer has a well-founded fear, or a finding that the alien

could   avoid   persecution       by   relocating      within   the    country   of

removal.   8 C.F.R. § 1208.13(b)(1)(i)(A), (B) (2005).


                                       - 2 -
            Without   regard     to    past   persecution,    an   alien   can

establish a well-founded fear of persecution on a protected ground.

Ngarurih, 371 F.3d at 187
.           The well-founded fear of persecution

standard contains both a subjective and an objective component.

“An applicant may satisfy the subjective element by presenting

‘candid, credible, and sincere testimony demonstrating a genuine

fear of persecution.’”       Chen v. INS, 
195 F.3d 198
, 201-02 (4th Cir.

1999) (quoting Berroteran-Melendez v. INS, 
955 F.2d 1251
, 1256 (9th

Cir. 1992) (internal quotation marks omitted)).               The objective

element requires a showing of specific, concrete facts that would

lead a reasonable person in like circumstances to fear persecution.

Huaman-Cornelio v. Bd. of Immigration Appeals, 
979 F.2d 995
, 999

(4th Cir. 1992).

            An   applicant     has    the   burden   of   demonstrating    her

eligibility for asylum.       8 C.F.R. § 1208.13(a) (2005); Gonahasa v.

INS, 
181 F.3d 538
, 541 (4th Cir. 1999).              Credibility findings,

relevant to the subjective component, are reviewed for substantial

evidence.   A trier of fact who rejects an applicant’s testimony on

credibility grounds must offer specific, cogent reasons for doing

so.   Figeroa v. INS, 
886 F.2d 76
, 78 (4th Cir. 1989).             We accord

broad, though not unlimited, deference to credibility findings

supported by substantial evidence.            Camara v. Ashcroft, 
378 F.3d 361
, 367 (4th Cir. 2004).




                                      - 3 -
           To establish eligibility for withholding of removal, an

alien must show a clear probability that, if she was removed to her

native country, her “life or freedom would be threatened” on a

protected ground. 8 U.S.C. § 1231(b)(3)(A) (2000); see 
Camara, 378 F.3d at 370
(4th Cir. 2004).       A “clear probability” means it is

more likely than not the alien would be subject to persecution.

INS v. Stevic, 
467 U.S. 407
, 429-30 (1984).           “The burden of proof

is on the applicant for withholding of removal . . . to establish

that his or her life or freedom would be threatened in the proposed

country of removal” on account of a protected ground.               8 C.F.R.

§ 1208.16(b) (2005).     A showing of past threat to life or freedom

on such a ground creates a rebuttable presumption that the threat

would recur upon removal. 8 C.F.R. § 1208.16(b)(1)(i); 
Camara, 378 F.3d at 370
.      Withholding of removal is mandatory if the alien

meets the standard of proof.      
Stevic, 467 U.S. at 429-30
.

           A    determination   regarding    eligibility     for   asylum   or

withholding of removal is conclusive 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)

(2000). We 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.’”         Rusu v. INS, 
296 F.3d 316
,


                                  - 4 -
325 n.14 (4th Cir. 2002) (quoting 
Huaman-Cornelio, 979 F.2d at 999
(internal quotation marks omitted)).              We find the immigration

judge’s negative credibility finding was supported by substantial

evidence.   We further find the evidence was not so compelling as to

warrant reversal.

            With   respect    to    the     Board’s   affirmation     of   the

immigration judge’s finding regarding relief under the Convention

Against Torture, we find Li failed to establish it was more likely

than not she will be tortured if she were to return to China.

            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




                                    - 5 -

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