Jiang v. Gonzales

Filing 920070129

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 05-2291

XIU XIN JIANG, Petitioner, versus ALBERTO R. GONZALES, Attorney General, Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. (A78-746-466)

Submitted:

January 17, 2007

Decided:

January 29, 2007

Before WILKINSON, WILLIAMS, and DUNCAN, Circuit Judges.

Petition denied by unpublished per curiam opinion.

Thomas M. Sweeny, Lenexa, Kansas, for Petitioner. Peter D. Keisler, Assistant Attorney General, M. Jocelyn Lopez Wright, Assistant Director, Brianne Whelan, 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Unpublished opinions are not binding precedent in this circuit.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: Xiu Xin 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") adopting without opinion the

immigration judge's decision denying his applications for asylum, withholding from removal and withholding under the Convention Against Torture ("CAT"). We deny the petition.

The INA authorizes the Attorney General to confer asylum on any refugee. 8 U.S.C. § 1158(a) (2000). It defines a refugee

as a person unwilling or unable to return to his 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." (2000). An applicant can establish refugee status based on past persecution in his native country on account of a protected ground. 8 C.F.R. § 1208.13(b)(1) (2006). "An applicant who demonstrates 8 U.S.C. § 1101(a)(42)(A)

that he was the subject of past persecution is presumed to have a well-founded fear of persecution." 182, 187 (4th Cir. 2004). alien can establish a Ngarurih v. Ashcroft, 371 F.3d

Without regard to past persecution, an fear of persecution on a

well-founded

protected ground.

Ngarurih, 371 F.3d at 187.

An applicant has the 8 C.F.R.

burden of demonstrating his eligibility for asylum.

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§ 1208.13(a) (2006); Gonahasa v. INS, 181 F.3d 538, 541 (4th Cir. 1999). A determination regarding eligibility for asylum or

withholding of removal is conclusive if supported by substantial evidence on the record considered as a whole. Zacarias, 502 U.S. 478, 481 (1992). INS v. Elias-

Administrative findings of

fact are conclusive unless any reasonable adjudicator would be compelled to decide to the contrary. (2000). 8 U.S.C. § 1252(b)(4)(B)

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." Rusu v. INS, 296

F.3d 316, 325 n.14 (4th Cir. 2002) (internal quotation marks omitted). We find the record does not compel a different result. The immigration judge's finding that Jiang was not persecuted because of a trait or characteristic listed under § 1101(a)(42)(A) was supported by substantial evidence. In addition, there was no

evidence supporting Jiang's contention he would be tortured if he returned to China. 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 the court and argument would not aid the decisional process. PETITION DENIED

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