Philomene Tshimbolela v. Eric Holder, Jr. , 466 F. App'x 193 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-1933
PHILOMENE MPUNGA TSHIMBOLELA,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: January 26, 2012 Decided: February 21, 2012
Before DUNCAN, DAVIS, and DIAZ, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Philomene Mpunga Tshimbolela, Petitioner Pro Se. Andrea Gevas,
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Unpublished opinions are not binding precedent in this circuit.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:
Philomene Mpunga Tshimbolela, a native and citizen of
the Democratic Republic of Congo, petitions for review of an
order of the Board of Immigration Appeals (“Board”) dismissing
her appeal from the immigration judge’s denial of her requests
for asylum, withholding of removal, and protection under the
Convention Against Torture. For the reasons set forth below, we
deny the petition for review.
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
2
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)).
We have reviewed the evidence of record and conclude
that substantial evidence supports the adverse credibility
finding. We further conclude that Tshimbolela failed to present
sufficient independent evidence of past persecution,
notwithstanding the adverse credibility determination, as
discussed in Camara v. Ashcroft, 378 F.3d 361, 370 (4th Cir.
2004). We therefore uphold the denial of Tshimbolela’s requests
for asylum and withholding of removal. See id. at 367 (“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).”).
Additionally, Tshimbolela challenges the denial of her
request for protection under the Convention Against Torture. To
qualify for such protection, 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) (2011). Based on our review
of the record, we conclude that substantial evidence supports
3
the denial of her request for relief. See Dankam v. Gonzales,
495 F.3d 113, 124 (4th Cir. 2007) (setting forth standard of
review).
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
4