Sibhat v. Gonzales , 186 F. App'x 374 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-2364
WOLDERUFAEL KIDANE SIBHAT,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals. (A97-934-608)
Submitted: June 12, 2006 Decided: July 10, 2006
Before NIEMEYER, WILLIAMS, and TRAXLER, Circuit Judges.
Petition denied by unpublished per curiam opinion.
David Goren, LAW OFFICE OF DAVID GOREN, Silver Spring, Maryland,
for Petitioner. Peter D. Keisler, Assistant Attorney General, James
Hunolt, Mark L. Gross, Christopher C. Wang, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Wolderufael Kidane Sibhat, a native and citizen of
Eritrea, petitions for review of an order of the Board of
Immigration Appeals (Board) adopting and affirming the immigration
judge’s denial of his requests for asylum, withholding of removal,
and protection under the Convention Against Torture.
In his petition for review, Sibhat challenges the
determination that he failed to establish his eligibility for
asylum. To obtain reversal of a determination denying eligibility
for relief, an alien “must show that the evidence he presented was
so compelling that no reasonable factfinder could fail to find the
requisite fear of persecution.” INS v. Elias-Zacarias, 502 U.S.
478, 483-84 (1992). We have reviewed the evidence of record and
conclude that Sibhat fails to show that the evidence compels a
contrary result. Accordingly, we cannot grant the relief that he
seeks.
Additionally, we uphold the denial of Sibhat’s 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).” Camara v. Ashcroft, 378
F.3d 361, 367 (4th Cir. 2004). Because Sibhat fails to show that
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he is eligible for asylum, he cannot meet the higher standard for
withholding of removal.*
Finally, we uphold the Board’s denial of Sibhat’s request
to remand his proceedings to the immigration judge to consider the
additional evidence that he submitted on appeal. Although the
Board does have the authority to remand proceedings for further
factfinding, 8 C.F.R. § 1003.1(d)(3)(iv) (2006), it “will not
remand to the [immigration judge] to consider additional evidence
proffered on appeal if the evidence ‘was available and could have
been presented at an earlier hearing.’” Berte v. Ashcroft, 396
F.3d 993, 997 (8th Cir. 2005) (quoting Matter of Grijalva, 21 I. &
N. Dec. 27, 36 (B.I.A. 1995)). Because we find that the additional
evidence submitted by Sibhat clearly could have been presented
before the immigration judge, we find that the Board did not abuse
its discretion in declining to remand the case. See Obioha v.
Gonzales, 431 F.3d 400, 408 (4th Cir. 2005) (setting forth standard
of review).
Accordingly, we deny the petition for review. We
dispense with oral argument because the facts and legal contentions
*
Sibhat does not challenge the denial of his request for
protection under the Convention Against Torture in his petition for
review.
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are adequately presented in the materials before the court and
argument would not aid the decisional process.
PETITION DENIED
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