Gessese v. Ashcroft

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 04-1581

ELIZABETH GESSESE,

Petitioner,

versus

JOHN ASHCROFT,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. (A95-905-595)

Submitted: November 19, 2004 Decided: December 14, 2004

Before TRAXLER, SHEDD, and DUNCAN, Circuit Judges.

Petition denied by unpublished per curiam opinion.

Aragaw Mehari, Washington, D.C., for Petitioner. Peter D. Keisler, Assistant Attorney General, Linda S. Wendtland, Assistant Director, John S. Hogan, OFFICE OF IMMIGRATION LITIGATION, Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM:

Elizabeth Gessese, a native and citizen of Ethiopia,

petitions for review of an order of the Board of Immigration

Appeals (“Board”) dismissing her appeal from the immigration

judge’s denial of asylum, withholding of removal, and protection

under the Convention Against Torture.

In her petition for review, Gessese contends that she

established her eligibility for asylum relief. The record reveals,

however, that the Board and immigration judge denied asylum relief

on the ground that Gessese failed to demonstrate by clear and

convincing evidence that she filed her application within one year

of the date of her arrival in the United States. See 8 U.S.C.

§ 1158(a)(2)(B) (2000). We conclude that we lack jurisdiction to

review this determination pursuant to 8 U.S.C. § 1158(a)(3) (2000).

See Zaidi v. Ashcroft, 377 F.3d 678, 680-81 (7th Cir. 2004)

(collecting cases). Given this jurisdictional bar, we cannot

review the underlying merits of Gessese’s asylum claim.

While we lack jurisdiction to consider the denial of

Gessese’s asylum claim, we retain jurisdiction to consider the

denial of her requests for withholding of removal and protection

under the Convention Against Torture. See 8 C.F.R. § 1208.4(a)

(2004). “To qualify for withholding of removal, a petitioner must

show that [s]he faces a clear probability of persecution because of

h[er] race, religion, nationality, membership in a particular

- 2 - social group, or political opinion.” Rusu v. INS, 296 F.3d 316,

324 n.13 (4th Cir. 2002) (citing INS v. Stevic, 467 U.S. 407, 430

(1984)). To qualify for protection under the Convention Against

Torture, a petitioner bears the burden of proof of demonstrating

that “it is more likely than not that he or she would be tortured

if removed to the proposed country of removal.” 8 C.F.R.

§ 1208.16(c)(2) (2004). Based on our review of the record, we find

that Gessese has failed to meet these standards.

Accordingly, we deny Gessese’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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