Diagana v. Ashcroft

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-1225
TOKA DIAGANA,
Petitioner,
versus
JOHN ASHCROFT, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals. (A79-496-278)
Submitted: December 23, 2004 Decided: January 10, 2005
Before NIEMEYER, WILLIAMS, and DUNCAN, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Thomas Hutchins, IMMIGRANT AND REFUGEE APPELLATE CENTER, LLC,
Alexandria, Virginia, for Petitioner. Peter D. Keisler, Assistant
Attorney General, Aviva L. Poczter, Allen W. Hausman, Senior
Litigation Counsel, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Toka Diagana, a native and citizen of Mauritania,
petitions for review of an order of the Board of Immigration
Appeals (Board) affirming the Immigration Judge’s (IJ) denial of
his application for asylum and withholding of removal. Diagana
challenges the IJ’s finding that he failed to meet his burden of
proof to qualify 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 Diagana fails to show that the evidence compels a
contrary result. Having failed to qualify for asylum, Diagana
cannot meet the higher standard to qualify for withholding of
removal. Chen v. INS, 195 F.3d 198, 205 (4th Cir. 1999); INS v.
Cardoza-Fonseca, 480 U.S. 421, 430 (1987).
Finally, we lack jurisdiction over Diagana’s challenge to
the denial of protection under the Convention Against Torture
because he failed to properly exhaust this claim in his appeal to
the Board. See 8 U.S.C. § 1252(d)(1) (2000); Asika v. Ashcroft,
362 F.3d 264, 267 n.3 (4th Cir. 2004), petition for cert. filed, 73
U.S.L.W. 3135 (U.S. Aug. 23, 2004) (No. 04-256).
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
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