UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-2460
NICOLE NSENGA KYALWE,
Petitioner,
versus
ALBERTO R. GONZALES, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals. (A95-254-927)
Submitted: June 17, 2005 Decided: July 29, 2005
Before MOTZ, SHEDD, and DUNCAN, Circuit Judges.
Petition denied by unpublished per curiam opinion.
James Feroli, IMMIGRANT AND REFUGEE APPELLATE CENTER, Alexandria,
Virginia, for Petitioner. Peter D. Keisler, Assistant Attorney
General, M. Jocelyn Lopez Wright, Assistant Director, Office of
Immigration Litigation, Civil Division, C. Alexander Hewes, Jr.,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Nicole Nsenga Kyalwe, a native and citizen of the
Democratic Republic of the Congo, petitions for review of an order
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 (CAT). To obtain
reversal of a determination finding no 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 administrative record and
the Board’s decision and find that Kyalwe fails to show that the
evidence compels a contrary result.
Additionally, we uphold the Board’s denial of 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). As Kyalwe did not show that she is eligible for
asylum, she cannot meet the higher standard for withholding of
removal.
We also find that Kyalwe fails to meet the standard for
relief under the CAT. To obtain such relief, an applicant must
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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) (2005). We conclude that substantial evidence
supports the Board’s finding that Kyalwe failed to make the
requisite showing.
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.
PETITION DENIED
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