Sibhat v. Gonzales

Filing 920060710

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 05-2364

WOLDERUFAEL KIDANE SIBHAT, Petitioner, versus ALBERTO R. GONZALES, U.S. Attorney General, Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. (A97-934-608)

Submitted:

June 12, 2006

Decided:

July 10, 2006

Before NIEMEYER, WILLIAMS, and TRAXLER, Circuit Judges.

Petition denied by unpublished per curiam opinion.

David Goren, LAW OFFICE OF DAVID GOREN, Silver Spring, Maryland, for Petitioner. Peter D. Keisler, Assistant Attorney General, James Hunolt, Mark L. Gross, Christopher C. Wang, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c).

PER CURIAM: Wolderufael Eritrea, petitions Kidane Sibhat, of an a native order and citizen Board of of

for

review

of

the

Immigration Appeals (Board) adopting and affirming the immigration judge's denial of his requests for asylum, withholding of removal, and protection under the Convention Against Torture. In his petition for review, Sibhat 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." 478, 483-84 (1992). INS v. Elias-Zacarias, 502 U.S.

We have reviewed the evidence of record and

conclude that Sibhat fails to show that the evidence compels a contrary result. seeks. Additionally, we uphold the denial of Sibhat's request for withholding of removal. "Because the burden of proof for Accordingly, we cannot grant the relief that he

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)." F.3d 361, 367 (4th Cir. 2004). Camara v. Ashcroft, 378

Because Sibhat fails to show that

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he is eligible for asylum, he cannot meet the higher standard for withholding of removal.* Finally, we uphold the Board's denial of Sibhat's request to remand his proceedings to the immigration judge to consider the additional evidence that he submitted on appeal. Although the

Board does have the authority to remand proceedings for further factfinding, 8 C.F.R. § 1003.1(d)(3)(iv) (2006), it "will not remand to the [immigration judge] to consider additional evidence proffered on appeal if the evidence `was available and could have been presented at an earlier hearing.'" Berte v. Ashcroft, 396

F.3d 993, 997 (8th Cir. 2005) (quoting Matter of Grijalva, 21 I. & N. Dec. 27, 36 (B.I.A. 1995)). Because we find that the additional

evidence submitted by Sibhat clearly could have been presented before the immigration judge, we find that the Board did not abuse its discretion in declining to remand the case. See Obioha v.

Gonzales, 431 F.3d 400, 408 (4th Cir. 2005) (setting forth standard of review). Accordingly, we deny the petition for review. We

dispense with oral argument because the facts and legal contentions

Sibhat does not challenge the denial of his request for protection under the Convention Against Torture in his petition for review. - 3 -

*

are adequately presented in the materials before the court and argument would not aid the decisional process.

PETITION DENIED

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