Michael Abate v. Eric Holder, Jr. , 461 F. App'x 270 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-1671
MICHAEL TSEGAYE ABATE,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: January 9, 2012 Decided: January 18, 2012
Before NIEMEYER, AGEE, and WYNN, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Alan M. Parra, LAW OFFICES OF ALAN M. PARRA, Silver Spring,
Maryland, for Petitioner. Tony West, Assistant Attorney
General, Anthony C. Payne, Senior Litigation Counsel, Lance L.
Jolley, 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Unpublished opinions are not binding precedent in this circuit.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:
Michael Tsegaye Abate, a native and citizen of
Ethiopia, petitions for review of an order of the Board of
Immigration Appeals (“Board”) dismissing his appeal from the
immigration judge’s order denying his applications for asylum,
withholding from removal and withholding under the Convention
Against Torture (“CAT”). We deny the petition for review.
The Immigration and Nationality Act (INA) authorizes
the Attorney General to confer asylum on any refugee. 8 U.S.C.
§ 1158(a) (2006). The INA defines a refugee as a person
unwilling or unable to return to his or her native country
“because of persecution or a well-founded fear of persecution on
account of race, religion, nationality, membership in a
particular social group, or political opinion.” 8 U.S.C.
§ 1101(a)(42)(A) (2006). “Persecution involves the infliction
or threat of death, torture, or injury to one’s person or
freedom, on account of one of the enumerated grounds[.]” Qiao
Hua Li v. Gonzales, 405 F.3d 171, 177 (4th Cir. 2005) (internal
quotation marks omitted).
An alien “bear[s] the burden of proving eligibility
for asylum,” Naizgi v. Gonzales, 455 F.3d 484, 486 (4th Cir.
2006); see 8 C.F.R. § 1208.13(a) (2011), and can establish
refugee status based on past persecution in his native country
on account of a protected ground. 8 C.F.R. § 1208.13(b)(1)
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(2011). “An applicant who demonstrates that he was the subject
of past persecution is presumed to have a well-founded fear of
persecution.” Ngarurih v. Ashcroft, 371 F.3d 182, 187 (4th Cir.
2004).
Without regard to past persecution, an alien can
establish a well-founded fear of persecution based on a
protected ground. Id. at 187. The well-founded fear standard
contains both a subjective and an objective component. The
objective element requires a showing of specific, concrete facts
that would lead a reasonable person in like circumstances to
fear persecution. Gandziami-Mickhou v. Gonzales, 445 F.3d 351,
353 (4th Cir. 2006). “The subjective component can be met
through the presentation of candid, credible, and sincere
testimony demonstrating a genuine fear of persecution . . . [It]
must have some basis in the reality of the circumstances and be
validated with specific, concrete facts . . . and it cannot be
mere irrational apprehension.” Qiao Hua Li, 405 F.3d at 176
(internal quotation marks, brackets and citations omitted).
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 are conclusive unless any reasonable
adjudicator would be compelled to decide to the contrary. 8
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U.S.C. § 1252(b)(4)(B) (2006). 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).
We have reviewed the record and conclude that
substantial evidence supports the Board’s finding that Abate did
not show past persecution or a well-founded fear of persecution
and the record does not compel a different result. 1
Accordingly, we deny the petition for review. 2 We
dispense with oral argument because the facts and legal
1
Abate’s claim that he showed that there was a pattern or
practice of persecuting members of his political party is not
properly before this court because Abate did not exhaust this
issue by presenting it to the Board on appeal. Pursuant to 8
U.S.C. § 1252(d)(1) (2006), the court may review a final order
of removal only if the alien has exhausted all administrative
remedies. An alien’s failure to dispute an issue on appeal to
the Board constitutes a failure to exhaust administrative
remedies and bars judicial review of that issue. See Massis v.
Mukasey, 549 F.3d 631, 638 (4th Cir. 2008); Asika v. Ashcroft,
362 F.3d 264, 267 n.3 (4th Cir. 2004).
2
Abate does not challenge the denial of relief under the
CAT. Accordingly, review is waived. See Ngarurih v. Ashcroft,
371 F.3d 182, 189 n.7 (4th Cir. 2004) (finding that the failure
to raise a challenge in an opening brief results in abandonment
of that challenge); Edwards v. City of Goldsboro, 178 F.3d 231,
241 n.6 (4th Cir. 1999) (same).
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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
PETITION DENIED
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