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Qing Lin v. Eric Holder, Jr., 12-1624 (2012)

Court: Court of Appeals for the Fourth Circuit Number: 12-1624 Visitors: 44
Filed: Dec. 19, 2012
Latest Update: Mar. 26, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-1624 QING LIN, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Submitted: December 4, 2012 Decided: December 19, 2012 Before NIEMEYER, AGEE, and THACKER, Circuit Judges. Petition denied by unpublished per curiam opinion. Adedayo O. Idowu, LAW OFFICES OF ADEDAYO O. IDOWU, PLLC, New York, New York, for Petitioner. Stuart F. Delery, Actin
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                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 12-1624


QING LIN,

                 Petitioner,

            v.

ERIC H. HOLDER, JR., Attorney General,

                 Respondent.



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


Submitted:    December 4, 2012               Decided:   December 19, 2012


Before NIEMEYER, AGEE, and THACKER, Circuit Judges.


Petition denied by unpublished per curiam opinion.


Adedayo O. Idowu, LAW OFFICES OF ADEDAYO O. IDOWU, PLLC, New
York, New York, for Petitioner.     Stuart F. Delery, Acting
Assistant   Attorney  General, Thomas   B.  Fatouros, Senior
Litigation Counsel, Jeffrey R. Meyer, 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Unpublished opinions are not binding precedent in this circuit.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:

            Qing     Lin,    a     native         and   citizen   of    the        People’s

Republic of China, petitions for review of an order of the Board

of   Immigration      Appeals          (“Board”)        sustaining      the        Attorney

General’s    appeal    from      the       immigration    judge’s      order       granting

Lin’s application for asylum.                  The Board found no clear error

with the immigration judge’s adverse credibility finding or the

finding that Lin failed to show past persecution, but vacated

the immigration judge’s finding that Lin had a well-founded fear

of persecution and ordered him removed.                      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).       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).                  An

alien “bear[s] the burden of proving eligibility for asylum.”

Naizgi v. Gonzales, 
455 F.3d 484
, 486 (4th Cir. 2006), 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) (2012).               “An applicant who demonstrates that he

was the subject of past persecution is presumed to have a well-

                                              2
founded fear of persecution.”                  Ngarurih v. Ashcroft, 
371 F.3d 182
, 187 (4th Cir. 2004).

             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, 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

[Board]’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)).

             For asylum applications filed after the passage of the

REAL ID Act of 2005, a trier of fact, “considering the totality

of   the   circumstances      and    all   relevant         factors,”      may   base    a

                                           3
credibility determination on any inconsistency, inaccuracy, or

falsehood “without regard to whether [it] goes to the heart of

the applicant’s claim.”                8 U.S.C. § 1158(b)(1)(B)(iii) (2006).

Thus,        “an         [immigration            judge’s]         adverse          credibility

determination           need    no    longer      rest        solely    on    those      matters

fundamental        to    an    alien’s         claim    for    relief    under      the    INA.”

Singh v. Holder, 
699 F.3d 321
, 329 (4th Cir. 2012).                                        “[I]n

evaluating      an      asylum      applicant’s         credibility,         an   [immigration

judge] may rely on omissions and inconsistencies that do not

directly relate to the applicant’s claim of persecution as long

as     the   totality          of    the       circumstances       establish        that    the

applicant is not credible.”                     Xiu Xia Lin v. Mukasey, 
534 F.3d 162
, 164 (2d Cir. 2008).

               This       court       reviews           credibility           findings       for

substantial        evidence.               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); see also Singh, 699 F.3d at 329

(the more flexible approach to credibility determinations does

not    alter    the       requirement          that     the    immigration        judge    offer

specific and cogent reasons).                    “Examples of specific and cogent

reasons include inconsistent statements, contradictory evidence,

and inherently improbable testimony.”                          Tewabe v. Gonzales, 
446 F.3d 533
,      538     (4th      Cir.       2006)     (internal       quotation        marks

                                                 4
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).     If the immigration judge’s adverse credibility finding

is based on speculation and conjecture rather than specific and

cogent reasoning, however, it is not supported by substantial

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

            We        conclude     that        the     immigration          judge        offered

specific and cogent reasons to support the adverse credibility

finding,     particularly         the     evidence         showing     an      inconsistency

regarding why Lin came to the United States and inconsistent

testimony between Lin and his witness regarding when Lin was

introduced       to    Christianity.            The       record   does      not       compel   a

different     result.        Because           Lin’s       testimony      was         found   not

credible and there was no independent evidence supporting the

finding that he was persecuted, we conclude that substantial

evidence supports the finding that Lin did not establish past

persecution.

            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

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

                                               5
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   v.

Gonzales, 
405 F.3d 171
, 176 (4th Cir. 2005) (internal quotation

marks and citations omitted).

            Lin need not show he would be individually targeted

for persecution if he shows that there is “a pattern or practice

in his or her country of nationality of persecution of a group

of persons similarly situated to the applicant on account of

race, religion, nationality, membership in a particular social

group, or political opinion.”                      8 C.F.R. § 1208.13(b)(2)(iii)

(2012).        Lin must show that the persecution is “thorough or

systemic.”       Yong Hao Chen v. INS, 
195 F.3d 198
, 203 (4th Cir.

1999); see also Ngure v. Ashcroft, 
367 F.3d 975
, 991 (8th Cir.

2004)     (to    be     a       pattern   or       practice    of   persecution,       the

persecution must be “systemic, pervasive or organized”).                               The

persecution of unregistered church members must be so widespread

that     there     is       a     reasonable        possibility     of     persecution.

Sugiarto v. Holder, 
586 F.3d 90
, 97 (1st Cir. 2009).



                                               6
             We    conclude     that     substantial             evidence       supports      the

finding    that     Lin   did     not    show       that    there       was    a    pattern    or

practice of persecuting members of unregistered churches to such

a   degree   that       persons    in    Lin’s           position      face     a   reasonable

possibility of persecution.

             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

this court and argument would not aid the decisional process.



                                                                              PETITION DENIED




                                               7

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