UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-2521
BERHANEMESKEL GOSHU MENGISTU,
Petitioner,
versus
JOHN ASHCROFT, U.S. Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals. (A79-473-951)
Submitted: September 15, 2004 Decided: October 7, 2004
Before NIEMEYER, TRAXLER, and SHEDD, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Aragaw Mehari, Washington, D.C., for Petitioner. Peter D. Keisler,
Assistant Attorney General, Margaret J. Perry, Senior Litigation
Counsel, Anh-Thu P. Mai, OFFICE OF IMMIGRATION LITIGATION,
Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Berhanemeskel Goshu Mengistu, 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 his applications for asylum,
withholding of removal, and protection under the Convention Against
Torture.
Mengistu challenges the immigration judge’s finding that
his asylum application was untimely because he failed to show by
clear and convincing evidence that he filed his application within
one year of the date of his arrival in the United States. See 8
U.S.C. § 1158(a)(2)(B) (2000). We conclude that we lack
jurisdiction to review this claim 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). Given this jurisdictional bar, we cannot
review the underlying merits of Mengistu’s asylum claim.
While we lack jurisdiction to consider the immigration
judge’s denial of Mengistu’s asylum claim, we retain jurisdiction
to consider the denial of his requests for withholding of removal
and protection under the Convention Against Torture. See 8 C.F.R.
§ 1208.4(a) (2004). “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,
- 2 -
296 F.3d 316, 324 n.13 (4th Cir. 2002) (citing INS v. Stevic, 467
U.S. 407, 430 (1984)). To qualify for protection under the
Convention Against Torture, a petitioner bears the burden of proof
of demonstrating that “it is more likely than not that he . . .
would be tortured if removed to the proposed country of removal.”
8 C.F.R. § 1208.16(c)(2) (2004). Based on our review of the
record, we find that Mengistu has failed to meet these standards.
Accordingly, we deny Mengistu’s 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
- 3 -