Samb v. Mukasey

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-1445
MAME SAMB,
Petitioner,
versus
MICHAEL B. MUKASEY, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals. (A98-706-610)
Submitted: October 29, 2007 Decided: January 10, 2008
Before MICHAEL, KING, and DUNCAN, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Mame Samb, Petitioner Pro Se. James Arthur Hunolt, Mona Maria
Yousif, 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Unpublished opinions are not binding precedent in this circuit.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:
Mame Samb, a native and citizen of Senegal, petitions for
review of an order of the Board of Immigration Appeals (“Board”)
affirming the immigration judge’s order pretermitting her
application for asylum relief as untimely* and denying her
applications for withholding of removal and protection under the
Convention Against Torture (“CAT”).
Samb challenges the Board’s denial of withholding of
removal. To qualify for withholding of removal, “the alien [must]
demonstrate ‘a clear probability of persecution’ on account of a
protected ground.” Dankam v. Gonzales, 495 F.3d 113, 115 (4th Cir.
2007) (quoting INS v. Stevic, 467 U.S. 407, 430 (1984)). The
protected grounds are defined as “race, religion, nationality,
membership in a particular social group, or political opinion.” 8
U.S.C. § 1231(b)(3)(A) (2000); 8 C.F.R. § 1208.16(b) (2007). Based
on our review of the record, we find that substantial evidence
supports the Board’s holding that Samb failed to meet this
standard.
Samb also alleges that the Board erred in denying her
protection under the CAT, asserting that the Board applied an
incorrect standard to her claim. We reject her contention that a
“clear probability” of torture is a higher standard than the
*
Samb does not challenge the Board’s denial of asylum relief
as untimely filed.
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regulatory language, “more likely than not.” 8 C.F.R.
§ 1208.16(c)(2) (2007). Although Samb relies on language in Stevic
to support her position, Stevic is concerned with the difference in
burden between the “well-founded fear” standard of an asylum claim
and the “more likely than not” standard for withholding of removal.
The CAT had not been enacted in 1984, and the language used in the
CAT, “more likely than not,” 8 C.F.R. § 1208.16(c)(2), is the same
as that used as the standard for withholding of removal, 8 C.F.R.
§ 1208.16(b)(2), and has been equated to “clear probability.” See
Kouljinski v. Keisler, __ F.3d __, __, 2007 WL 2989461, at *8 (6th
Cir. Oct. 16, 2007) (“To prevail on a petition for withholding of
removal under the [Immigration and Nationality Act (“INA”)], or on
a petition for withholding of removal under the CAT, an alien must
show that there is a ‘clear probability’ that she would be subject
to persecution, for the INA, or to torture, for the CAT . . . .”);
Fadiga v. U.S. Att’y Gen., 488 F.3d 142, 160 (3d Cir. 2007) (noting
the Board erred in holding the alien to the underlying “clear
probability” standard for withholding of removal and CAT protection
rather than to motion to reopen standard); Yakovenko v. Gonzales,
477 F.3d 631, 637 (8th Cir. 2007) (“To be entitled to relief under
the [CAT], it is not necessary that torture be motivated by a
protected basis, but there must be a clear probability the
petitioner will be tortured if returned to her homeland.”);
Sulaiman v. Gonzales, 429 F.3d 347, 351 (1st Cir. 2005) (rejecting
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claim that “clear probability” was not CAT standard, holding
“‘[c]lear probability’ simply means ‘more likely than not,’ which
is the correct standard for the immigration judge to apply . . .
.”). We conclude that the Board did not err in using the “clear
probability” language. Further, substantial evidence supports the
Board’s finding that Samb failed to meet that standard. See Lin-
Jian v. Gonzales, 489 F.3d 182, 193 (4th Cir. 2007) (applying
substantial evidence standard to CAT claim).
Therefore, we deny Samb’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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