Xiang Ling Peng v. Gonzales , 138 F. App'x 572 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-1854
XIANG LING PENG,
Petitioner,
versus
ALBERTO R. GONZALES, Attorney General,
Respondent.
No. 04-2537
XIANG LING PENG,
Petitioner,
versus
ALBERTO R. GONZALES, Attorney General,
Respondent.
On Petitions for Review of Orders of the Board of Immigration
Appeals. (A96-100-859)
Submitted: June 8, 2005 Decided: July 12, 2005
Before MICHAEL and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Petitions denied by unpublished per curiam opinion.
Bruno Joseph Bembi, Hempstead, New York, for Petitioner. Robert D.
McCallum, Jr., Assistant Attorney General, Terri J. Scadron,
Assistant Director, Hillel R. Smith, OFFICE OF IMMIGRATION
LITIGATION, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
In these consolidated petitions for review, Xiang Ling
Peng, a native and citizen of the People’s Republic of China,
petitions for review of two separate orders of the Board of
Immigration Appeals: (1) affirming, without opinion, the
immigration judge’s denial of her requests for asylum, withholding
of removal, and protection under the Convention Against Torture;
and (2) denying her motion to reopen.
Peng first challenges the immigration judge’s
determination that she failed to establish her 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). We have reviewed the evidence of record
and conclude that Peng fails to show that the evidence compels a
contrary result. Accordingly, we cannot grant the relief that she
seeks.
Additionally, we uphold the immigration judge’s denial of
Peng’s 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
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F.3d 361, 367 (4th Cir. 2004). Because Peng fails to show that she
is eligible for asylum, she cannot meet the higher standard for
withholding of removal.
We also find that substantial evidence supports the
immigration judge’s finding that Peng fails 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) (2005). We find
that Peng failed to make the requisite showing before the
immigration court.
Peng also claims that the immigration judge refused to
allow her sufficient time to present testimony in violation of her
rights to due process. Our review of the record reveals that Peng
was given the option to continue her case in order to present
additional testimony but declined. Under these circumstances, we
cannot conclude that Peng was denied due process of law.
Finally, Peng claims that the Board abused its discretion
in denying her motion to reopen. We have reviewed the
administrative record and the Board’s decision and find no abuse of
discretion in its denial of the motion to reopen. 8 C.F.R.
§ 1003.2(a) (2005); INS v. Doherty, 502 U.S. 314, 323-24 (1992);
Yanez-Popp v. INS, 998 F.2d 231, 234 (4th Cir. 1993).
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Accordingly, we deny the petitions 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.
PETITIONS DENIED
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