Hong Cao v. Eric Holder, Jr. , 518 F. App'x 145 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-2381
HONG QING CAO,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: March 28, 2013 Decided: April 9, 2013
Before DAVIS, KEENAN, and THACKER, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Guang Jun Gao, LAW OFFICES OF GUANG JUN GAO, Flushing, New York,
for Petitioner. Stuart F. Delery, Principal Deputy Assistant
Attorney General, John S. Hogan, Senior Litigation Counsel,
Robbin K. Blaya, 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Unpublished opinions are not binding precedent in this circuit.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:
Hong Qing Cao, 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 decision denying her requests for asylum,
withholding of removal, and protection under the Convention
Against Torture.
A determination regarding eligibility for asylum or
withholding of removal is affirmed if supported by substantial
evidence on the record considered as a whole. INS v. Elias-
Zacarias, 502 U.S. 478, 481 (1992). Administrative findings of
fact, including findings on credibility, are conclusive unless
any reasonable adjudicator would be compelled to decide to the
contrary. 8 U.S.C. § 1252(b)(4)(B) (2006). Legal issues are
reviewed de novo, “affording appropriate deference to the
[Board]’s interpretation of the [Immigration and Nationality
Act] and any attendant regulations.” Li Fang Lin v. Mukasey,
517 F.3d 685, 691-92 (4th Cir. 2008). This court will reverse
the Board only if “the evidence . . . presented was so
compelling that no reasonable factfinder could fail to find the
requisite fear of persecution.” Elias-Zacarias, 502 U.S. at
483-84; see Rusu v. INS, 296 F.3d 316, 325 n.14 (4th Cir. 2002).
Furthermore, “[t]he agency decision that an alien is not
eligible for asylum is ‘conclusive unless manifestly contrary to
2
the law and an abuse of discretion.’” Marynenka v. Holder, 592
F.3d 594, 600 (4th Cir. 2010) (quoting 8 U.S.C. § 1252(b)(4)(D)
(2006)).
We have reviewed the evidence of record and conclude
that substantial evidence supports the agency’s finding that Cao
failed to meet her burden of establishing that her experiences
with the police in China constituted either past persecution or
a well-founded fear of future persecution on account of a
protected ground. We therefore uphold the denial of Cao’s
requests for asylum and withholding of removal. See Camara v.
Ashcroft, 378 F.3d 361, 367 (4th Cir. 2004). (“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).”).
Finally, to qualify for protection under the
Convention Against Torture, a petitioner bears the burden of
proof of showing “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) (2012). To state a prima
facie case for relief, the petitioner must show that he or she
will be subject to “severe pain or suffering, whether physical
or mental . . . by or at the instigation of or with the consent
3
or acquiescence of a public official or other person acting in
an official capacity.” 8 C.F.R. § 1208.18(a)(1) (2012); see
Saintha v. Mukasey, 516 F.3d 243, 246 & n.2 (4th Cir. 2008).
Based on our review of the record, we conclude that substantial
evidence supports the denial of Cao’s request for relief. See
Dankam v. Gonzales, 495 F.3d 113, 124 (4th Cir. 2007) (setting
forth standard of review). As found by the Board, the
mistreatment that Cao described clearly did not rise to the
level of torture, and there is nothing in the record to suggest
that it is more likely than not that she will be tortured by or
with the acquiescence of the Chinese government upon her return.
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
this court and argument would not aid the decisional process.
PETITION DENIED
4