Nkandu v. Gonzales

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 05-1966

BUELA NTOKO MARIE JULIE NKANDU,

Petitioner,

versus

ALBERTO R. GONZALES,

Respondent.

On Petition for Review of an Order of the Board of Immigration
Appeals. (A97-185-280)

Submitted: March 24, 2006 Decided: April 21, 2006

Before LUTTIG, MICHAEL, and DUNCAN, Circuit Judges.

Petition denied by unpublished per curiam opinion.

Bokwe G. Mofor, Silver Spring, Maryland, for Petitioner. Rod J.
Rosenstein, United States Attorney, Kristine L. Sendek-Smith,
Assistant United States Attorney, Baltimore, Maryland, for
Respondent.

Unpublished opinions are not binding precedent in this circuit.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

Buela Ntoko Marie Julie Nkandu, a native and citizen of

the Democratic Republic of Congo, petitions for review of an order

of the Board of Immigration Appeals (“Board”) dismissing her appeal

from the immigration judge’s denial of her requests for asylum,

withholding of removal, and protection under the Convention Against

Torture.

In her petition for review, Nkandu challenges the

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 Nkandu fails to show that the evidence compels a

contrary result. Accordingly, we cannot grant the relief that she

seeks.

Additionally, we uphold the denial of Nkandu’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). As Nkandu fails to show that she is

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eligible for asylum, she cannot meet the higher standard for

withholding of removal.

We also find that substantial evidence supports the

Board’s finding that Nkandu 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) (2005). We find that Nkandu

failed to make the requisite showing before the Board.

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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