UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1667
GOITOM MOGOS-HABTE, a/k/a Goltom Mogos Habte,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: February 20, 2013 Decided: February 28, 2013
Before MOTZ, KING, and DUNCAN, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Jason A. Dzubow, DZUBOW, SARAPU & PILCHER, PLLC, Washington,
D.C., for Petitioner. Stuart F. Delery, Principal Deputy
Assistant Attorney General, Linda S. Wernery, Assistant
Director, Kerry A. Monaco, 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Unpublished opinions are not binding precedent in this circuit.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:
Goitom Mogos-Habte, a native and citizen of Eritrea,
petitions for review of an order of the Board of Immigration
Appeals (“Board”) dismissing his appeal from the immigration
judge’s decision denying his requests for asylum and withholding
of removal under the Immigration and Nationality Act (“INA”) * and
denying his motion to remand.
A determination regarding eligibility for asylum or
withholding of removal under the INA 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, including findings on credibility, 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 [Board]’s interpretation of the INA and any
attendant regulations.” 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.
*
The agency granted Mogos-Habte’s request for withholding
of removal under the Convention Against Torture.
2
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)).
We have reviewed the evidence of record and conclude
that substantial evidence supports the agency’s finding that
Mogos-Habte failed to meet his burden of establishing that his
experiences with the Eritrean military constituted either past
persecution or a well-founded fear of future persecution on
account of a protected ground. We therefore uphold the denial
of Mogos-Habte’s requests for asylum and withholding of removal
under the INA. See Camara v. Ashcroft, 378 F.3d 361, 367 (4th
Cir. 2004). (“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).”).
We have also reviewed the denial of Mogos-Habte’s
motion to remand and find no abuse of discretion. See Onyeme v.
INS, 146 F.3d 227, 234 (4th Cir. 1998) (setting forth standard
of review). As found by the Board, Mogos-Habte failed to
demonstrate that the evidence he sought to present “was not
available and could not have been discovered or presented at the
3
former hearing.” 8 C.F.R. § 1003.2(c)(1) (2012). We further
reject Mogos-Habte’s contention that the Board should have taken
administrative notice of his evidence under the “commonly known
facts” exception set forth in 8 C.F.R. § 1003.1(d)(3)(iv)
(2012).
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
this court and argument would not aid the decisional process.
PETITION DENIED
4