Angeline Ndayikeza v. Eric Holder, Jr.

Filing

Case: 09-60717

Document: 00511201632

Page: 1

Date Filed: 08/12/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-60717 S u m m a r y Calendar August 12, 2010 Lyle W. Cayce Clerk

A N G E L I N E NDAYIKEZA, P e titio n e r v. E R I C H. HOLDER, JR., U. S. ATTORNEY GENERAL, R espon dent

P e tit io n for Review of an Order of the B o a r d of Immigration Appeals B I A No. A098 873 589

B e fo r e KING, DeMOSS, and DENNIS, Circuit Judges. P E R CURIAM:* A n g e lin e Ndayikeza, a native and citizen of Burundi, has filed a petition fo r review of the order of the Board of Immigration Appeals (BIA) dismissing her a p p e a l of the denial of her application for asylum, withholding of removal, and p r o t e c t io n under the Convention Against Torture (CAT). Ndayikeza contends t h a t the BIA erred in acquiescing to the Immigration Judge's (IJ) determination t h a t her asylum application was untimely. Because the BIA's decision regarding a s y lu m was not based on untimeliness of her application, her contentions
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
*

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Document: 00511201632 Page: 2 No. 09-60717

Date Filed: 08/12/2010

r e g a r d in g the timeliness of her asylum application are unavailing.

See

O n tu n e z -T u r s io s v. Ashcroft, 303 F.3d 341, 348 (5th Cir. 2002) (recognizing that t h is court reviews the order of the BIA and will consider the underlying decision o f the IJ only if it had some impact upon the BIA's decision). N d a y ik e z a also contends that the BIA erred in determining that she failed t o demonstrate that she had an objectively reasonable fear of persecution, which s h e claimed stemmed from the killing of her parents in Burundi, that was on a c c o u n t of race, religion, nationality, membership in a particular social group, o r political opinion. The BIA's determination that an alien is not eligible for a s y lu m , withholding of removal, or CAT relief is reviewed under the substantial e v id e n c e standard. Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006). U n d e r that standard, this court will not reverse the BIA's decision unless the e v id e n c e not only supports a contrary conclusion but compels it. Id. "The a p p lic a n t has the burden of showing that the evidence is so compelling that no r e a s o n a b le factfinder could reach a contrary conclusion." Id. T h e Attorney General has the discretion to grant asylum to refugees. 8 U .S .C . § 1158(b)(1); Chen, 470 F.3d at 1135. A person who is outside of her c o u n t r y is a refugee if she is unable or unwilling to return to, or avail herself of t h e protection of, that country "because of persecution or a well-founded fear of p e r s e c u t io n on account of race, religion, nationality, membership in a particular s o c ia l group, or political opinion." 8 U.S.C. § 1101(a)(42)(A); accord Chen, 470 F .3 d at 1135. "To establish a well-founded fear of future persecution, an a p p lic a n t must demonstrate a subjective fear of persecution, and that fear must b e objectively reasonable." o m itte d ). N d a y ik e z a briefs no argument challenging the BIA's determination that t h e IJ did not err in denying asylum as a matter of discretion, and she has thus w a iv e d any such challenge. See Calderon-Ontiveros v. INS, 809 F.2d 1050, 1052 (5 t h Cir. 1986). In any event, in light of the lack of evidence linking the death 2 Chen, 470 F.3d at 1135 (citations and marks

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Date Filed: 08/12/2010

o f her parents to any of the statutorily enumerated grounds for asylum, the r e c o r d does not compel a conclusion contrary to the BIA's determination that N d a y ik e z a failed to show that she had an objectively reasonable fear of p e r s e c u t io n in Burundi on account of any of the statutorily enumerated grounds. G iv e n that Ndayikeza cannot satisfy the standard for eligibility for a s y lu m , Ndayikeza cannot meet the more demanding objective-likelihood-ofp e r s e c u t io n standard required to obtain withholding of removal. See Chen, 470 F .3 d at 1138. Additionally, while Ndayikeza does not brief any argument

c h a lle n g in g the BIA's decision regarding CAT relief, the evidence nevertheless d o e s not compel a conclusion contrary to the BIA's determination that she failed t o show that she more likely than not would face torture if she were removed to B u r u n d i. See id. at 1134, 1139. T h e petition for review is DENIED.

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