D.M. v. Holder , 396 F. App'x 12 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-2134
D.M.; M.M.,
Petitioners,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: August 16, 2010 Decided: September 15, 2010
Before WILKINSON, MOTZ, and KEENAN, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Ronald D. Richey, LAW OFFICE OF RONALD D. RICHEY, Rockville,
Maryland, for Petitioners. Tony West, Assistant Attorney
General, Mary Jane Candaux, Assistant Director, Todd J. Cochran,
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Unpublished opinions are not binding precedent in this circuit.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:
The Petitioners, D.M. and M.M., natives and citizens
of El Salvador, petition for review of an order of the Board of
Immigration Appeals (“Board”) dismissing their appeal from the
immigration judge’s denial of their requests for asylum,
withholding of removal, and protection under the Convention
Against Torture.
The Petitioners first challenge the determination that
they failed to establish eligibility for asylum. To obtain
reversal of a determination denying eligibility for relief, an
alien “must show that the evidence [s]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). Furthermore, “[t]he agency decision that an
alien is not eligible for asylum is ‘conclusive unless
manifestly contrary to 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)).
Based on our review of the record, we conclude that
the Petitioners fail to demonstrate that the evidence in their
case compels a contrary result. As found by the Board, the
Petitioners have failed to show that they are at a greater risk
of being victims of violent acts at the hands of criminal gangs
than any other member of the general population in El Salvador.
2
We have clearly held that a fear of general violence and unrest
is inadequate to establish persecution on a protected ground.
See Huaman-Cornelio v. Bd. of Immigration Appeals, 979 F.2d 995,
1000 (4th Cir. 1992) (finding that eligibility for asylum does
not extend to persons who fear general violence stemming from
civil unrest); M.A. v. I.N.S., 899 F.2d 304, 315-16 (4th Cir.
1990) (en banc) (finding that alien’s “own allegations make
clear that his fear is grounded in nothing more than the
generally violent conditions extant in El Salvador” and
rejecting the notion that assertions of “general violence alone
can satisfy the requirement of an individualized threat of
persecution”) (superseded by statute on other grounds). We
therefore find that substantial evidence supports the denial of
relief.
Additionally, we uphold the denial of the Petitioners’
request for withholding of removal. “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).”
Camara v. Ashcroft, 378 F.3d 361, 367 (4th Cir. 2004). Because
the Petitioners failed to show that they are eligible for
asylum, they cannot meet the higher standard for withholding of
removal.
3
We also conclude that substantial evidence supports
the finding that the Petitioners failed to meet the standard for
relief under the Convention Against Torture. To obtain such
relief, an applicant must establish 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) (2010). Based on
our review, we agree that the Petitioners failed to demonstrate
that they will more likely than not be tortured by or with the
acquiescence of the government of El Salvador. See Amilcar-
Orellana v. Mukasey, 551 F.3d 86, 92 (1st Cir. 2008) (upholding
denial of Convention Against Torture claim based on gang
violence in El Salvador and describing the government’s efforts
to control gang activity).
Finally, the Petitioners challenge the immigration
judge’s denial of their request for a second continuance. We
review the denial of a motion for a continuance for abuse of
discretion. Lendo v. Gonzales, 493 F.3d 439, 441 (4th Cir.
2007); Onyeme v. INS, 146 F.3d 227, 231 (4th Cir. 1998). The
court “must uphold the IJ’s denial of a continuance ‘unless it
was made without a rational explanation, it inexplicably
departed from established policies, or it rested on an
impermissible basis, e.g., invidious discrimination against a
particular race or group.’” Lendo, 493 F.3d at 441 (quoting
Onyeme, 146 F.3d at 231).
4
The record reveals that the Petitioners requested a
continuance on the ground that M.M. was unable to “withstand the
rigors of examination” and attend the immigration hearing in
light of her anxiety disorder. Based on counsel’s
representation that M.M. would have presented the same testimony
as D.M. (who did attend and testify at the hearing) and the fact
that a lengthy continuance had already been granted, the
immigration judge denied the motion for a continuance but
granted the Petitioners’ request for a waiver of appearance by
M.M. Because the immigration judge gave a rational explanation
for his denial of a continuance and did not rest his decision on
an impermissible basis, we find that no abuse of discretion
occurred.
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
5