Turay v. Gonzales

• Court: Court of Appeals for the Fourth Circuit
• Decided: June 30, 2006
• Docket: 05-2037
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 05-2037

RAMATU TURAY, Mother; AHMED ALVIN TURAY, Son,

Petitioners,

versus

ALBERTO R. GONZALES, Attorney General,

Respondent.

No. 06-1168

On Petitions for Review of Orders of the Board of Immigration Appeals. (A79-497-511; A79-497-517)

Submitted: May 31, 2006 Decided: June 30, 2006

Before MICHAEL, MOTZ, and DUNCAN, Circuit Judges. No. 05-2037, petition dismissed in part; denied in part; No. 06- 1168, petition denied by unpublished per curiam opinion.

Randall L. Johnson, JOHNSON & ASSOCIATES, P.C., Arlington, Virginia, for Petitioners. Peter D. Keisler, Assistant Attorney General, M. Jocelyn Lopez Wright, Assistant Director, Daniel E. Goldman, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit.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

- 2 - PER CURIAM:

In these consolidated petitions for review, Ramatu Turay

and her minor son, Ahmed Alvin Turay, natives and citizens of

Sierra Leone, petition for review from the orders of the Board of

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

denial of asylum, withholding of removal, and protection under the

Convention Against Torture as to the Petitioners and the denial of

voluntary departure as to Ramatu Turay (No. 05-2037); and denying

their motion to reopen (No. 06-1168). We dismiss in part and deny

in part the petition for review in No. 05-2037. We deny the

petition for review in No. 06-1168.

Petitioners seek to challenge the Board’s factual finding

that they failed to file their asylum application within one year

of the date of their arrival in the United States. See 8 U.S.C.

§ 1158(a)(2)(B) (2000). We conclude we lack jurisdiction to review

this determination pursuant to 8 U.S.C. § 1158(a)(3) (2000). See

Zaidi v. Ashcroft, 377 F.3d 678, 680-81 (7th Cir. 2004) (collecting

cases); see also Vasile v. Gonzales, 417 F.3d 766, 768 (7th Cir.

2005) (holding that even in light of the REAL ID Act of 2005, these

“factual determinations continue to fall outside the jurisdiction

of the court of appeals entertaining a petition for review”).

Given this jurisdictional bar, we cannot review the Board’s denial

of Petitioners’ asylum claim.

- 3 - While we lack jurisdiction to consider the Board’s ruling

on the asylum claim, we retain jurisdiction to consider the denial

of withholding of removal and protection under the Convention

Against Torture. See 8 C.F.R. § 1208.4(a) (2006). “To qualify for

withholding of removal, a petitioner must show that he faces a

clear probability of persecution because of his race, religion,

nationality, membership in a particular social group, or political

opinion.” Rusu v. INS, 296 F.3d 316, 324 n.13 (4th Cir. 2002)

(citing INS v. Stevic, 467 U.S. 407, 430 (1984)).

Petitioners challenge the Board’s determinations that

Ramatu Turay’s testimony was not credible and that she filed a

frivolous asylum application. 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

accord broad, though not unlimited, deference to credibility

findings supported by substantial evidence. Camara v. Ashcroft,

378 F.3d 361, 367 (4th Cir. 2004). We will uphold the final agency

determination if it is not “manifestly contrary to law.” Id.

Based on our review of the record, we find that

substantial evidence supports the Board’s determination that

Petitioners failed to present a credible claim for withholding of

removal. Accordingly, the Board correctly concluded Petitioners

could not establish their entitlement to withholding of removal.

We further conclude that Turay had sufficient prior notice of the

- 4 - consequences of filing a frivolous asylum application and

opportunity to account for any discrepancies or implausible aspects

of her claim, and the Board properly determined Turay knowingly

filed a frivolous asylum application. See 8 U.S.C. § 1158(d)(6)

(2000); 8 C.F.R. § 1208.20 (2006).

We also find that substantial evidence supports the

immigration judge’s finding, affirmed by the Board, that

Petitioners failed to meet the standard for relief under the

Convention Against Torture. To obtain such relief, an applicant

must show that “it is more likely than not that he or she would be

tortured if removed to the proposed country of removal.” 8 C.F.R.

§ 1208.16(c)(2) (2006). Petitioners failed to make the requisite

showing before the immigration judge.

Petitioners also challenge the Board’s denial of their

motion to reopen. This court reviews the Board’s denial of

reopening with extreme deference and only for an abuse of

discretion. Stewart v. INS, 181 F.3d 587, 595 (4th Cir. 1999).

Such motions are especially disfavored in a removal proceeding,

where “every delay works to the advantage of the deportable alien

who wishes merely to remain in the United States.” INS v. Doherty,

502 U.S. 314, 323 (1992). We have reviewed the administrative

record and find the Board did not abuse its discretion.

Accordingly, we dismiss in part and deny in part the

petition for review in No. 05-2037. We deny the petition for

- 5 - review in No. 06-1168. 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.

No. 05-2037 PETITION DISMISSED IN PART; DENIED IN PART No. 06-1168 PETITION DENIED

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