UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-1350
NITA WIDYANTI,
Petitioner,
versus
ALBERTO R. GONZALES, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals. (A79-508-408)
Submitted: October 25, 2004 Decided: May 26, 2005
Before NIEMEYER, GREGORY, and DUNCAN, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Stanley J. Ellenberg, LAW OFFICES OF STANLEY ELLENBERG &
ASSOCIATES, Philadelphia, Pennsylvania, for Petitioner. Peter D.
Keisler, Assistant Attorney General, Linda S. Wendtland, Assistant
Director, John S. Hogan, 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Unpublished opinions are not binding precedent in this circuit.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:
Nita Widyanti, a native and citizen of Indonesia,
petitions for review of an order of the Board of Immigration
Appeals (“Board”) affirming, without opinion, the immigration
judge’s order denying her applications for asylum, withholding of
removal, and protection under the Convention Against Torture.
In her petition for review, Widyanti challenges the
immigration judge’s determination that she failed to establish her
eligibility for asylum. To obtain reversal of a determination
denying eligibility for relief, an alien “must show that the
evidence [s]he presented was so compelling that no reasonable
factfinder could fail to find the requisite fear of persecution.”
INS v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992). We have
reviewed the evidence of record and conclude that Widyanti fails to
show that the evidence compels a contrary result. Accordingly, we
cannot grant the relief that she seeks.
Additionally, we uphold the immigration judge’s denial of
Widyanti’s request for withholding of removal. “Because the burden
of proof for withholding of removal is higher than for asylum--even
though the facts that must be proved are the same--an applicant who
is ineligible for asylum is necessarily ineligible for withholding
of removal under [8 U.S.C.] § 1231(b)(3).” Camara v. Ashcroft, 378
F.3d 361, 367 (4th Cir. 2004). Because Widyanti fails to show that
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she is eligible for asylum, she cannot meet the higher standard for
withholding of removal.
We also find that Widyanti fails to meet the standard for
relief under the Convention Against Torture. To obtain such
relief, an applicant must establish 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) (2004). We find
that Widyanti fails to make the requisite showing.
Finally, Widyanti claims that the Board’s refusal to
allow her to file an untimely opening brief in support of her
appeal violated her rights to due process. In order to succeed on
a procedural due process claim, Widyanti must make a showing of
prejudice. See Rusu v. INS, 296 F.3d 316, 324 (4th Cir. 2002);
Farrokhi v. INS, 900 F.2d 697, 703 n.7 (4th Cir. 1990). We may
find prejudice only “when the rights of [an] alien have been
transgressed in such a way as is likely to impact the results of
the proceeding.” Rusu, 296 F.3d at 320-21 (internal quotations and
citation omitted). We find that Widyanti fails to show that the
results of her proceeding would have been different if she had been
allowed to file a brief and therefore fails to make the requisite
showing of prejudice.
Accordingly, we deny the petition for review. We
dispense with oral argument because the facts and legal contentions
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are adequately presented in the materials before the court and
argument would not aid the decisional process.
PETITION DENIED
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