UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-2055
NESLY CESAR,
Petitioner,
v.
MICHAEL B. MUKASEY, Attorney General,
Respondent.
No. 08-1119
NESLY CESAR,
Petitioner,
v.
MICHAEL B. MUKASEY, Attorney General,
Respondent.
On Petitions for Review of Orders of the Board of Immigration
Appeals.
Submitted: July 23, 2008 Decided: August 21, 2008
Before NIEMEYER, MOTZ, and TRAXLER, Circuit Judges.
No. 07-2055 petition denied; No. 08-1119 petition dismissed by
unpublished per curiam opinion.
Randall L. Johnson, JOHNSON & ASSOCIATES, P.C., Arlington,
Virginia, for Petitioner. Gregory G. Katsas, Acting Assistant
Attorney General, Richard M. Evans, Assistant Director, Nancy E.
Friedman, Trial Attorney, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In these consolidated appeals, Nesly Cesar, a native and
citizen of Haiti, petitions for review of two separate orders of
the Board of Immigration Appeals: (1) Case No. 07-2055, dismissing
his appeal from the immigration judge’s denial of his requests for
asylum, withholding of removal, and protection under the Convention
Against Torture; and (2) Case No. 08-1119, denying his motion to
reopen.
In Case No. 07-2055, Cesar first challenges the
determination that he failed to establish his eligibility for
asylum. To obtain reversal of a determination denying eligibility
for relief, an alien “must show that the evidence 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 Cesar fails to show that the evidence compels a
contrary result. Accordingly, we cannot grant the relief that he
seeks.
Additionally, we uphold the denial of Cesar’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
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F.3d 361, 367 (4th Cir. 2004). Because Cesar fails to show that he
is eligible for asylum, he cannot meet the higher standard for
withholding of removal. Accordingly, we deny the petition for
review in Case No. 07-2055.*
In Case No. 08-1119, Cesar contends that the Board abused
its discretion in denying his motion to reopen. Pursuant to
8 U.S.C. § 1252(b)(1) (2006), he had thirty days from the date of
the Board’s order, or until January 30, 2008, to timely file a
petition for review. This time period is “jurisdictional in nature
and must be construed with strict fidelity to [its] terms.” Stone
v. INS, 514 U.S. 386, 405 (1995). It is “not subject to equitable
tolling.” Id. Cesar filed his petition for review on January 31,
2008, one day late. Because the petition was clearly filed outside
of the thirty-day time period, we dismiss the petition for review
in Case No. 08-1119 for lack of jurisdiction.
Accordingly, we deny the petition for review in Case No.
07-2055 and dismiss the petition in Case No. 08-1119 for the
reasons set forth above. We dispense with oral argument because
*
In his brief before this court, Cesar has failed to raise any
challenges to the denial of his request for protection under the
Convention Against Torture. We therefore find that he has waived
appellate review of this claim. See Ngarurih v. Ashcroft, 371 F.3d
182, 189 n.7 (4th Cir. 2004).
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the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
No. 07-2055 PETITION DENIED
No. 08-1119 PETITION DISMISSED
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