Moreno v. Mukasey , 292 F. App'x 222 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-1939
VICENTE MORENO; SARA ANGELA ARIAS-CHAVEZ; J.D.M.,
Petitioners,
v.
MICHAEL B. MUKASEY, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: June 25, 2008 Decided: July 17, 2008
Before NIEMEYER, KING, and SHEDD, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Paul O’Dwyer, New York, New York, for Petitioners. Jeffrey S.
Bucholtz, Acting Assistant Attorney General, M. Jocelyn Lopez-
Wright, Assistant Director, Yamileth G. HandUber, 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Unpublished opinions are not binding precedent in this circuit.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:
Vicente Moreno (“Moreno”), his wife, Sara Angela Arias-
Chavez, and their minor son, J.D.M., (collectively “Petitioners”),
natives and citizens of Colombia, petition for review of an order
of the Board of Immigration Appeals (“Board”) dismissing their
appeal from the immigration judge’s denial of their requests for
asylum, withholding of removal, and protection under the Convention
Against Torture. Moreno is the primary applicant for asylum; the
claims of his wife and son are derivative of his application. See
8 U.S.C.A. § 1158(b)(3) (West 2005); 8 C.F.R. § 1208.21(a) (2008).
In their petition for review, the Petitioners first
challenge the determination that they failed to establish their
eligibility for asylum. The Board and immigration judge denied the
request for asylum on the ground that Moreno failed to establish by
clear and convincing evidence that he filed his asylum application
within one year of his arrival in the United States, and we lack
jurisdiction to review this determination pursuant to 8 U.S.C.
§ 1158(a)(3) (2000), even in light of the passage of the REAL ID
Act of 2005, Pub. L. No. 109-13, 119 Stat. 231. See Almuhtaseb v.
Gonzales, 453 F.3d 743, 747-48 (6th Cir. 2006) (collecting cases).
Given this jurisdictional bar, we cannot review the underlying
merits of the Petitioners’ asylum claims.
The Petitioners also contend that the immigration judge
erred in denying their request for withholding of removal. “To
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qualify for withholding of removal, a petitioner must show that he
faces a clear probability of persecution because of his race,
religion, nationality, membership in a particular social group, or
political opinion.” Rusu v. INS, 296 F.3d 316, 324 n.13 (4th Cir.
2002) (citing INS v. Stevic, 467 U.S. 407, 430 (1984)); see
8 C.F.R. § 1251(b)(3) (2008). Based on our review of the record,
we find that the Petitioners failed to make the requisite showing
before the immigration court. We therefore uphold the denial of
their request for withholding of removal.
Finally, we find that substantial evidence supports the
Board’s 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) (2008).
Additionally, the petitioner must show that he or she will be
subject to “severe pain or suffering, whether physical or mental
. . . by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an
official capacity.” 8 C.F.R. § 1208.18(a)(1) (2008); see
Saintha v. Mukasey, 516 F.3d 243, 246 & n.2 (4th Cir. 2008). We
find that the Petitioners failed to make the requisite showing
before the Board.
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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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