ACHARYA v. HOLDER, 424 Fed.Appx. 196 (4th Cir. 2011)

Hemraj ACHARYA, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 10-1561.United States Court of Appeals, Fourth Circuit.Submitted: March 31, 2011.
Decided: April 21, 2011.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

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

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.

Before KING, GREGORY, and DAVIS, Circuit Judges.

Petition denied by unpublished PER CURIAM opinion.

Unpublished opinions are not binding precedent in this circuit.


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).

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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) (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 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, 112 S.Ct. 812, 117 L.Ed.2d 38 (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 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

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requisite fear of persecution.” Elias-Zacarias, 502 U.S. at 483-34, 112 S.Ct. 812; 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 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.


[*] 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).