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Mammo v. Holder, 09-2255 (2010)

Court: Court of Appeals for the Fourth Circuit Number: 09-2255 Visitors: 45
Filed: May 14, 2010
Latest Update: Feb. 21, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-2255 ABIY BERECHA MAMMO, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Submitted: April 29, 2010 Decided: May 14, 2010 Before WILKINSON and AGEE, Circuit Judges, and HAMILTON, Senior Circuit Judge. Petition denied by unpublished per curiam opinion. Jason A. Dzubow, MENSAH & DZUBOW, PLLC, Washington, D.C., for Petitioner. Tony West, A
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                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 09-2255


ABIY BERECHA MAMMO,

                Petitioner,

          v.

ERIC H. HOLDER, JR., Attorney General,

                Respondent.



On Petition for Review of an Order of the Board of Immigration
Appeals.


Submitted:   April 29, 2010                 Decided:   May 14, 2010


Before WILKINSON and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Petition denied by unpublished per curiam opinion.


Jason A. Dzubow, MENSAH & DZUBOW, PLLC, Washington, D.C., for
Petitioner.    Tony West, Assistant Attorney General, Susan
Houser, Senior Litigation Counsel, Steven F. Day, 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Unpublished opinions are not binding precedent in this circuit.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:

            Abiy Berecha Mammo, a native and citizen of Ethiopia,

petitions for review of an order of the Board of Immigration

Appeals    (“Board”)      affirming            without     opinion      the     immigration

judge’s     order       denying      Mammo’s         applications             for        asylum,

withholding     of     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),      (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).

            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)       (2009),        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)

                                                2
(2009).     “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. “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) (alteration added).

            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

                                          3
evidence,    and    inherently     improbable       testimony[.]”           Tewabe    v.

Gonzales, 
446 F.3d 533
, 538 (4th Cir. 2006) (internal quotation

marks and citation 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[.]

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

                                          4
cogent reasoning, however, it is not supported by substantial

evidence.    
Tewabe, 446 F.3d at 538
.

            Furthermore,      this    court     may    not    reverse    a   finding

regarding the availability of corroborative evidence unless a

reasonable       factfinder    is    compelled        to     conclude     that    the

corroborative evidence is unavailable.                  8 U.S.C. § 1252(b)(4)

(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

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).

            We    find   substantial     evidence          supports    the   adverse

credibility finding, which was based on several discrepancies

noted by the immigration judge and Mammo’s testimonial demeanor.

We further note the record does not compel a different result

with respect to the immigration judge’s findings regarding the

need for additional corroborating evidence.                   We also note Mammo

                                        5
fails    to   challenge     the    immigration       judge’s    alternate       finding

that,    assuming    he     was     credible,        he   failed   to     show    past

persecution or a well-founded fear of persecution based on 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




     *
       By failing to raise a challenge in his brief to that
portion of the immigration judge’s order denying relief under
the CAT, review is abandoned. See Yousefi v. INS, 
260 F.3d 318
,
326 (4th Cir. 2001); Edwards v. City of Goldsboro, 
178 F.3d 231
,
241 (4th Cir. 1999).



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Source:  CourtListener

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