Hui Fang Xiao v. Holder ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-1107
HUI FANG XIAO,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: July 28, 2010 Decided: August 11, 2010
Before SHEDD and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Petition denied by unpublished per curiam opinion.
Gregory Marotta, LAW OFFICE OF RICHARD TARZIA, Belle Mead, New
Jersey, for Petitioner. Tony West, Assistant Attorney General,
Mary Jane Candaux, Assistant Branch Director, Matthew A.
Connelly, 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Unpublished opinions are not binding precedent in this circuit.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:
Hui Fang Xiao, a native and citizen of the People’s
Republic of China, petitions for review of an order of the Board
of Immigration Appeals (“Board”) dismissing her appeal from the
immigration judge’s denial of her requests for asylum and
withholding of removal.
Xiao first challenges the determination that she
failed to establish her 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.” INS v. Elias-Zacarias, 502 U.S.
478, 483-84 (1992). We have reviewed the evidence of record and
conclude that Xiao fails to demonstrate that the evidence
compels a contrary result. We therefore find that substantial
evidence supports the denial of relief.
Additionally, we uphold the denial of Xiao’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 Xiao failed to
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establish that she is eligible for asylum, she cannot meet the
higher standard for withholding of removal.
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
∗
It does not appear that Xiao requested relief under the
Convention Against Torture before the immigration judge; the
Board nonetheless addressed Xiao’s contention on appeal that she
was entitled to such relief. Although the Board’s decision to
address this issue arguably excused Xiao’s failure to raise it
before the immigration judge, cf. Xian Tuan Ye v. Dep’t of
Homeland Security, 446 F.3d 289, 296-97 (6th Cir. 2006), we note
that she failed to raise any specific claims regarding her
eligibility for such relief before this court. We therefore
conclude that Xiao has waived appellate review of this claim.
See Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6 (4th
Cir. 1999).
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