UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-1593
GWENDOLINE KIN MANKA,
Petitioner,
versus
ALBERTO R. GONZALES, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals. (A97-920-704)
Submitted: December 29, 2006 Decided: January 22, 2007
Before GREGORY and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Petition denied by unpublished per curiam opinion.
Danielle Beach Oswald, NOTO & OSWALD, Washington, D.C., for
Petitioner. Peter D. Keisler, Assistant Attorney General, M.
Jocelyn Lopez Wright, Assistant Director, Kristin K. Edison, Office
of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gwendoline Kin Manka, a native and citizen of Cameroon,
petitions for review of an order of the Board of Immigration
Appeals (“Board”) adopting and affirming the immigration judge’s
order denying her applications for asylum, withholding of removal,
and protection under the Convention Against Torture (“CAT”). Manka
challenges the immigration judge’s findings that her asylum
application was untimely and that she did not establish eligibility
for withholding of removal or protection under the CAT.
The timeliness of an alien’s asylum application is
usually a question of fact. See Mehilli v. Gonzales, 433 F.3d 86,
93 (1st Cir. 2005). On May 11, 2005, Congress enacted the Real ID
Act, which added a new subsection to the judicial review
provisions. This subsection provides that discretionary and
factual determinations are outside the jurisdiction of the court of
appeals. 8 U.S.C.A. § 1252(a)(2)(D) (West 2005); see also
Vasile v. Gonzales, 417 F.3d 766, 768 (7th Cir. 2005). An
exception to this provision obtains for constitutional claims or
questions of law raised by aliens seeking discretionary relief.
Higuit v. Gonzales, 433 F.3d 417, 419 (4th Cir.), cert. denied, 126
S. Ct. 2973 (2006). Despite Manka’s contentions that the
immigration judge erred as a matter of law, the judge’s
consideration of evidence at the trial and its subsequent
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conclusion are factual in nature. Accordingly, we do not have
jurisdiction to review Manka’s asylum claim.
Additionally, we uphold the immigration judge’s denial of
Manka’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 we find Manka would not be
able to show that she is eligible for asylum based on the record
presented, we find she cannot meet the higher standard for
withholding of removal.
We also hold that Manka 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 he would be tortured if removed to the proposed
country of removal.” 8 C.F.R. § 1208.16(c)(2) (2004). We find
that Manka fails to make the requisite showing.
Accordingly, we deny the petition for review for the
reasons stated by the Board. 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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