Gessese v. Ashcroft , 115 F. App'x 136 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-1581
ELIZABETH GESSESE,
Petitioner,
versus
JOHN ASHCROFT,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals. (A95-905-595)
Submitted: November 19, 2004 Decided: December 14, 2004
Before TRAXLER, SHEDD, and DUNCAN, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Aragaw Mehari, Washington, D.C., for Petitioner. Peter D. Keisler,
Assistant Attorney General, Linda S. Wendtland, Assistant Director,
John S. Hogan, OFFICE OF IMMIGRATION LITIGATION, Washington, D.C.,
for Respondent.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Elizabeth Gessese, a native and citizen of Ethiopia,
petitions for review of an order of the Board of Immigration
Appeals (“Board”) dismissing her appeal from the immigration
judge’s denial of asylum, withholding of removal, and protection
under the Convention Against Torture.
In her petition for review, Gessese contends that she
established her eligibility for asylum relief. The record reveals,
however, that the Board and immigration judge denied asylum relief
on the ground that Gessese failed to demonstrate by clear and
convincing evidence that she filed her application within one year
of the date of her arrival in the United States. See 8 U.S.C.
§ 1158(a)(2)(B) (2000). We conclude that we lack jurisdiction to
review this determination pursuant to 8 U.S.C. § 1158(a)(3) (2000).
See Zaidi v. Ashcroft, 377 F.3d 678, 680-81 (7th Cir. 2004)
(collecting cases). Given this jurisdictional bar, we cannot
review the underlying merits of Gessese’s asylum claim.
While we lack jurisdiction to consider the denial of
Gessese’s asylum claim, we retain jurisdiction to consider the
denial of her requests for withholding of removal and protection
under the Convention Against Torture. See 8 C.F.R. § 1208.4(a)
(2004). “To qualify for withholding of removal, a petitioner must
show that [s]he faces a clear probability of persecution because of
h[er] race, religion, nationality, membership in a particular
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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)). To qualify for protection under the Convention Against
Torture, a petitioner bears the burden of proof of demonstrating
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) (2004). Based on our review of the record, we find
that Gessese has failed to meet these standards.
Accordingly, we deny Gessese’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
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