United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
March 29, 2005
FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-60247
Summary Calendar
GERTRUDE NKONYE CHIDI,
Petitioner-Appellant,
versus
ALBERTO P. GONZALES, U.S. ATTORNEY GENERAL,
Defendant-Appellee.
Petition for Review of an Order of the
Board of Immigration Appeals
(A 78 126 689)
Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
Gertrude Nkonye Chidi, a native and citizen of Nigeria,
petitions for review of the decision by Board of Immigration
Appeals (BIA), affirming the Immigration Judge’s (IJ) denial (1) of
Chidi’s application for asylum as time-barred and (2) of
withholding of removal. To be eligible for withholding of removal,
Chidi must demonstrate it is “more likely than not” her “life or
freedom would be threatened in [the country to which she is being
removed] because of [her] race, religion, nationality, membership
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
in a particular group, or political opinion”. Bah v. Ashcroft, 341
F.3d 348, 351 (5th Cir. 2003) (citing 8 U.S.C.A. § 1231(b)(3)(A),
INA § 241 (b)(3)(A)).
Chidi maintains she sufficiently established that: if she is
returned to Nigeria, she would be under the control of village
leaders, who wish to subject her to Female Genital Mutilation
(FGM); and neither her mother nor her husband would be able to
protect her. She contends the IJ erred in concluding that, because
she had returned to Nigeria a number of times without being
subjected to FGM, she would not be harmed if she returned again.
Chidi asserts she was unharmed on previous trips because four
occurred while her father, who was against FGM, was alive. She
contends the evidence establishes that up to 60% of Nigerian women
are subject to FGM; and the Nigerian government does not protect
women from this practice. Chidi asserts it is more likely than not
that she will be persecuted because of her membership in a
particular group (women not subjected to FGM) if she returns to
Nigeria.
We review the BIA order, not the IJ’s decision. Chun v. INS,
40 F.3d 76, 78 (5th Cir. 1994). The BIA reviewed the record and
agreed with the IJ that: Chidi’s application for asylum was time-
barred because Chidi filed it outside the one-year time period and
showed no changed or extraordinary circumstances to excuse the late
filing; Chidi had not met her burden of establishing past
persecution or a well-founded fear of persecution because of her
membership in a particular group; and she had not proved it was
more likely than not that she would be subjected to FGM upon return
to Nigeria.
Chidi does not challenge the determination that her asylum
application was time-barred. Therefore, she has waived this
issue. See Yohey v. Collins, 985 F.2d 222, 223-24 (5th Cir. 1993);
FED. R. APP. P. 28(a)(6).
We review for substantial evidentiary support in the record
the BIA’s decision that an alien is ineligible for withholding of
removal. Chun, 40 F.3d at 78. “Under substantial evidence review,
we may not reverse the BIA’s factual determination unless we find
not only that the evidence supports a contrary conclusion, but that
the evidence compels it.” Id. (emphasis in original).
The finding that Chidi had not demonstrated a clear
probability of future persecution is based on the record evidence
and is substantially reasonable. Although the State Department
documents submitted by Chidi showed that a mother opposed to FGM
might not be able to protect her daughter if the daughter’s father
or husband wished to have FGM performed, there is no evidence that
either Chidi’s husband or any family member has advocated having
FGM performed on her. In sum, the evidence does not compel “a
contrary conclusion” to that reached by the BIA: that Chidi was not
entitled to withholding of removal.
DENIED