UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-2152
JING JIANG, a/k/a Jyung Jyang,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: April 3, 2012 Decided: April 12, 2012
Before GREGORY, DUNCAN, and AGEE, Circuit Judges.
Petition denied in part; dismissed in part by unpublished per
curiam opinion.
Cora J. Chang, New York, New York, for Petitioner. Tony West,
Assistant Attorney General, John S. Hogan, Senior Litigation
Counsel, David H. Wetmore, 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Unpublished opinions are not binding precedent in this circuit.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:
Jing Jiang, a native and citizen of the People’s
Republic of China, petitions for review of an order of the Board
of Immigration Appeals (“Board”) dismissing her appeal from the
immigration judge’s order denying her applications for asylum,
withholding from removal and withholding under the Convention
Against Torture (“CAT”). We dismiss in part and deny in part
the petition for review.
The Immigration and Nationality Act (“INA”) authorizes
the Attorney General to confer asylum on any refugee. 8 U.S.C.
§ 1158(a) (2006). The INA defines a refugee as a person
unwilling or unable to return to her native country “because of
persecution or a well-founded fear of persecution on account of
race, religion, nationality, membership in a particular social
group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A) (2006).
“Persecution involves the infliction or threat of death,
torture, or injury to one’s person or freedom, on account of one
of the enumerated grounds. . . .” Qiao Hua Li v. Gonzales, 405
F.3d 171, 177 (4th Cir. 2005) (internal quotation marks and
citations omitted).
An alien “bear[s] the burden of proving eligibility
for asylum,” Naizgi v. Gonzales, 455 F.3d 484, 486 (4th Cir.
2006); see 8 C.F.R. § 1208.13(a) (2011), and can establish
refugee status based on past persecution in her native country
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on account of a protected ground. 8 C.F.R. § 1208.13(b)(1)
(2011).
Without regard to past persecution, an alien can
establish a well-founded fear of persecution on a protected
ground. Ngarurih v. Ashcroft, 371 F.3d 182, 187 (4th Cir.
2004). The well-founded fear standard contains both a
subjective and an objective component. The objective element
requires a showing of specific, concrete facts that would lead a
reasonable person in like circumstances to fear persecution.
Gandziami-Mickhou v. Gonzales, 445 F.3d 351, 353 (4th Cir.
2006). “The subjective component can be met through the
presentation of candid, credible, and sincere testimony
demonstrating a genuine fear of persecution . . . . [It] must
have some basis in the reality of the circumstances and be
validated with specific, concrete facts . . . and it cannot be
mere irrational apprehension.” Qiao Hua Li, 405 F.3d at 176
(internal quotation marks and citations omitted).
To establish eligibility for withholding of removal,
an alien must show a clear probability that, if she was removed
to her native country, her “life or freedom would be threatened”
on a protected ground. 8 U.S.C. § 1231(b)(3)(A) (2006); see
Camara v. Ashcroft, 378 F.3d 361, 370 (4th Cir. 2004). A “clear
probability” means that it is more likely than not that the
alien would be subject to persecution. INS v. Stevic, 467 U.S.
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407, 429-30 (1984). Unlike asylum, withholding of removal is
mandatory for anyone who establishes that their “life or freedom
would be threatened . . . because of [their] race, religion,
nationality, membership in a particular social group, or
political opinion.” 8 U.S.C. § 1231(b)(3)(A) (2006).
To qualify for protection under the CAT, an alien
bears the burden of proof of showing “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) (2011). To state
a prima facie case for relief under the CAT, an alien must show
that she will be subject to “severe pain or suffering, whether
physical or mental, . . . by or at the instigation of or with
the consent or acquiescence of a public official or other person
acting in an official capacity.” 8 C.F.R. § 1208.18(a)(1)
(2011); see Saintha v. Mukasey, 516 F.3d 243, 246 & n.2 (4th
Cir. 2008).
A determination regarding eligibility for relief from
removal is affirmed if supported by substantial evidence on the
record considered as a whole. INS v. Elias-Zacarias, 502 U.S.
478, 481 (1992). Administrative findings of fact are conclusive
unless any reasonable adjudicator would be compelled to decide
to the contrary. 8 U.S.C. § 1252(b)(4)(B) (2006). Legal issues
are reviewed de novo, “affording appropriate deference to the
BIA’s interpretation of the INA and any attendant regulations.”
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Li Fang Lin v. Mukasey, 517 F.3d 685, 691-92 (4th Cir. 2008).
This court will reverse the Board only if “the evidence . . .
presented was so compelling that no reasonable factfinder could
fail to find the requisite fear of persecution.” Elias-
Zacarias, 502 U.S. at 483-84; see Rusu v. INS, 296 F.3d 316, 325
n.14 (4th Cir. 2002). Furthermore, “[t]he agency decision that
an alien is not eligible for asylum is ‘conclusive unless
manifestly contrary to the law and an abuse of discretion.’”
Marynenka v. Holder, 592 F.3d 594, 600 (4th Cir. 2010) (quoting
8 U.S.C. § 1252(b)(4)(D) (2006)).
On appeal to the Board, Jiang claimed that she
established past persecution based on her particular social
group, her kinship ties with her family. The Board noted this
claim was not raised before the immigration judge and that it
does not recognize claims raised for the first time on appeal.
Under 8 U.S.C. § 1252(d)(1) (2006), this court may review a
final order of removal only if the alien “has exhausted all
administrative remedies available to the alien as of right[.]”
Any particular claim that is not properly exhausted is barred
from being reviewed by this court. See Massis v. Mukasey, 549
F.3d 631, 638-39 (4th Cir. 2008) (Petitioner “may not raise an
issue on appeal that he did not previously raise before the IJ
and BIA.”). This prohibition against reviewing unexhausted
claims is jurisdictional. Id.
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Exhaustion serves the purposes of (1) preventing
premature interference with agency proceedings, (2) allowing the
agency to operate efficiently and to correct its own errors, (3)
affording the parties and the courts the benefits of the
agency’s expertise and (4) compiling an adequate record for
judicial review. Weinbereger v. Salfi, 422 U.S. 749, 765
(1975); see also Kurfees v. INS, 275 F.3d 332, 336 (4th Cir.
2001) (the exhaustion requirement “serves the twin purposes of
protecting administrative agency authority and promoting
judicial efficiency.”). Because Jiang did not exhaust all
available remedies, we conclude we are without jurisdiction to
consider this claim. Accordingly, we dismiss in part the
petition for review.
We have reviewed the immigration judge’s finding that
Jiang did not show that she has a well-founded fear of
persecution and conclude that it is supported by substantial
evidence. We further conclude that substantial evidence
supports the finding that Jiang was not eligible for relief
under the CAT.
Accordingly, we dismiss that part of the petition for
review in which Jiang claims that she established a well-founded
fear of persecution based on her membership in a particular
social group, her family. We deny the remaining portion of the
petition for review. We dispense with oral argument because the
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facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
PETITION DENIED IN PART;
DISMISSED IN PART
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