Mame Samb v. Michael Mukasey

Filing 920080110

Opinion

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-1445 MAME SAMB, Petitioner, versus MICHAEL B. MUKASEY, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. (A98-706-610) Submitted: October 29, 2007 Decided: January 10, 2008 Before MICHAEL, KING, and DUNCAN, Circuit Judges. Petition denied by unpublished per curiam opinion. Mame Samb, Petitioner Pro Se. James Arthur Hunolt, Mona Maria Yousif, 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 Unpublished opinions are not binding precedent in this circuit.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: Mame Samb, a native and citizen of Senegal, petitions for review of an order of the Board of Immigration Appeals ("Board") affirming application the for immigration asylum judge's as order untimely* pretermitting and denying her her relief applications for withholding of removal and protection under the Convention Against Torture ("CAT"). Samb challenges the Board's denial of withholding of removal. To qualify for withholding of removal, "the alien [must] demonstrate `a clear probability of persecution' on account of a protected ground." Dankam v. Gonzales, 495 F.3d 113, 115 (4th Cir. 2007) (quoting INS v. Stevic, 467 U.S. 407, 430 (1984)). The protected grounds are defined as "race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. 1231(b)(3)(A) (2000); 8 C.F.R. 1208.16(b) (2007). Based on our review of the record, we find that substantial evidence supports standard. Samb also alleges that the Board erred in denying her protection under the CAT, asserting that the Board applied an incorrect standard to her claim. We reject her contention that a the Board's holding that Samb failed to meet this "clear probability" of torture is a higher standard than the Samb does not challenge the Board's denial of asylum relief as untimely filed. - 2 - * regulatory language, "more likely than not." 8 C.F.R. 1208.16(c)(2) (2007). Although Samb relies on language in Stevic to support her position, Stevic is concerned with the difference in burden between the "well-founded fear" standard of an asylum claim and the "more likely than not" standard for withholding of removal. The CAT had not been enacted in 1984, and the language used in the CAT, "more likely than not," 8 C.F.R. 1208.16(c)(2), is the same as that used as the standard for withholding of removal, 8 C.F.R. 1208.16(b)(2), and has been equated to "clear probability." See Kouljinski v. Keisler, __ F.3d __, __, 2007 WL 2989461, at *8 (6th Cir. Oct. 16, 2007) ("To prevail on a petition for withholding of removal under the [Immigration and Nationality Act ("INA")], or on a petition for withholding of removal under the CAT, an alien must show that there is a `clear probability' that she would be subject to persecution, for the INA, or to torture, for the CAT . . . ."); Fadiga v. U.S. Att'y Gen., 488 F.3d 142, 160 (3d Cir. 2007) (noting the Board erred in holding the alien to the underlying "clear probability" standard for withholding of removal and CAT protection rather than to motion to reopen standard); Yakovenko v. Gonzales, 477 F.3d 631, 637 (8th Cir. 2007) ("To be entitled to relief under the [CAT], it is not necessary that torture be motivated by a protected petitioner basis, will but be there must if be a clear to probability her the tortured returned homeland."); Sulaiman v. Gonzales, 429 F.3d 347, 351 (1st Cir. 2005) (rejecting - 3 - claim that "clear probability" was not CAT standard, holding "`[c]lear probability' simply means `more likely than not,' which is the correct standard for the immigration judge to apply . . . ."). We conclude that the Board did not err in using the "clear Further, substantial evidence supports the See Lin- probability" language. Board's finding that Samb failed to meet that standard. Jian v. Gonzales, 489 F.3d 182, 193 (4th Cir. 2007) (applying substantial evidence standard to CAT claim). Therefore, we deny Samb's 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 - 4 -

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