Diana Martinez-Navarrete v. Eric Holder, Jr.
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: A99-653-169,A99-653-170 Copies to all parties and the district court/agency. [998425023] [09-2134]
Diana Martinez-Navarrete v. Eric Holder, Jr.
Doc. 0
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Date Filed: 09/15/2010
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-2134 D.M.; M.M., Petitioners, v. ERIC H. HOLDER, JR., Attorney General, Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals. Submitted: August 16, 2010 Decided: September 15, 2010
Before WILKINSON, MOTZ, and KEENAN, Circuit Judges. Petition denied by unpublished per curiam opinion. Ronald D. Richey, LAW OFFICE OF RONALD D. RICHEY, Rockville, Maryland, for Petitioners. Tony West, Assistant Attorney General, Mary Jane Candaux, Assistant Director, Todd J. Cochran, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM: The Petitioners, D.M. and M.M., natives and citizens of El Salvador, petition for review of an order of the Board of Immigration Appeals ("Board") dismissing their appeal from the immigration withholding judge's of denial and of their requests under for asylum,
removal,
protection
the
Convention
Against Torture. The Petitioners first challenge the determination that they failed to establish eligibility for asylum. To obtain
reversal of a determination denying eligibility for relief, an alien "must show that the evidence [s]he presented was so
compelling that no reasonable factfinder could fail to find the requisite fear of persecution." 478, 483-84 (1992). alien is not INS v. Elias-Zacarias, 502 U.S.
Furthermore, "[t]he agency decision that an for asylum is `conclusive unless
eligible
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)). Based on our review of the record, we conclude that the Petitioners fail to demonstrate that the evidence in their case compels a contrary result. As found by the Board, the
Petitioners have failed to show that they are at a greater risk of being victims of violent acts at the hands of criminal gangs than any other member of the general population in El Salvador. 2
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We have clearly held that a fear of general violence and unrest is inadequate to establish persecution on a protected ground. See Huaman-Cornelio v. Bd. of Immigration Appeals, 979 F.2d 995, 1000 (4th Cir. 1992) (finding that eligibility for asylum does not extend to persons who fear general violence stemming from civil unrest); 1990) clear (en that banc) his M.A. v. I.N.S., 899 F.2d 304, 315-16 (4th Cir. (finding fear is that alien's in "own allegations more than make the and
grounded
nothing in El
generally
violent
conditions
extant
Salvador"
rejecting the notion that assertions of "general violence alone can satisfy the requirement by of an individualized on other threat of We
persecution")
(superseded
statute
grounds).
therefore find that substantial evidence supports the denial of relief. Additionally, we uphold the denial of the Petitioners' request for withholding of removal. "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)." Because for
Camara v. Ashcroft, 378 F.3d 361, 367 (4th Cir. 2004). the Petitioners failed to show that they are
eligible
asylum, they cannot meet the higher standard for withholding of removal. 3
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We
also
conclude
that
substantial
evidence
supports
the finding that the Petitioners failed to meet the standard for relief under the Convention Against Torture. To obtain such
relief, an applicant must establish that "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) (2010). Based on
our review, we agree that the Petitioners failed to demonstrate that they will more likely than not be tortured by or with the acquiescence of the government of El Salvador. See Amilcar-
Orellana v. Mukasey, 551 F.3d 86, 92 (1st Cir. 2008) (upholding denial of Convention Against Torture claim based on gang
violence in El Salvador and describing the government's efforts to control gang activity). Finally, the Petitioners challenge the immigration We
judge's denial of their request for a second continuance.
review the denial of a motion for a continuance for abuse of discretion. Lendo v. Gonzales, 493 F.3d 439, 441 (4th Cir. The
2007); Onyeme v. INS, 146 F.3d 227, 231 (4th Cir. 1998).
court "must uphold the IJ's denial of a continuance `unless it was made without from a rational explanation, or it it inexplicably on an a
departed
established basis, e.g.,
policies, invidious
rested
impermissible
discrimination
against
particular race or group.'" Onyeme, 146 F.3d at 231).
Lendo, 493 F.3d at 441 (quoting
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The record reveals that the Petitioners requested a continuance on the ground that M.M. was unable to "withstand the rigors of examination" and attend the immigration hearing in light of her anxiety disorder. Based on counsel's
representation that M.M. would have presented the same testimony as D.M. (who did attend and testify at the hearing) and the fact that a lengthy judge continuance denied the had already for been a granted, the but
immigration
motion
continuance
granted the Petitioners' request for a waiver of appearance by M.M. Because the immigration judge gave a rational explanation
for his denial of a continuance and did not rest his decision on an impermissible basis, we find that no abuse of discretion
occurred. Accordingly, dispense with oral we deny the petition the for facts review. and We legal
argument
because
contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
PETITION DENIED
5
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