Dika v. Ashcroft , 85 F. App'x 374 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS January 6, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-60220
Summary Calendar
RAIF DIKA; ARTA DIKA,
Petitioners,
versus
JOHN ASHCROFT, U.S. ATTORNEY GENERAL,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A77-241-871
Before JONES, BENAVIDES and CLEMENT, Circuit Judges.
PER CURIAM:*
Raif Dika petitions this court for review of the Board of
Immigration Appeals’ (“BIA”) decision affirming the Immigration
Judge’s (“IJ”) order denying his applications for asylum and
withholding of removal and for relief under the Convention Against
Torture.
*
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that this opinion should not be published and is not precedent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.
When, as here, the BIA summarily affirms without opinion
and essentially adopts the IJ’s decision, we review the IJ’s
decision. See Mikhael v. INS, 115 F.3d 299, 302 (5th Cir. 1997).
Dika argues that the IJ’s determination that his
testimony was not credible is in error because the inconsistencies
relied on by the IJ did not exist and, therefore, cannot provide
the basis for an adverse credibility determination. Dika has not
demonstrated that the record compels a conclusion contrary to that
of the IJ and therefore has not provided a basis for this court to
replace the IJ’s determinations concerning credibility or ultimate
factual findings based on credibility determinations with its own
determinations. Id. at 906.
Review of the record reveals that the IJ’s determination
that Dika failed to demonstrate that he is entitled to asylum
is supported by substantial evidence. The burden of proof for
withholding of removal under the Immigration and Nationality Act
and under the Convention Against Torture is a higher standard than
asylum. Failure to satisfy the less demanding asylum standard is,
a fortiori, a failure to demonstrate eligibility for withholding of
removal. Efe, 293 F.3d at 906. Accordingly, Dika has not demon-
strated that he is entitled to relief.
Dika further argues that his case did not meet the BIA’s
requirements for issuance of an affirmance without opinion pursuant
to 8 C.F.R. § 1003.1(e)(4). Because the decision of the IJ was
correct and does not raise any substantial factual or legal
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questions on appeal, the decision met the criteria for a summary
affirmance pursuant to 8 U.S.C. § 1003.1(4).
The petition for review is therefore DENIED.
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