Squair v. Gonzales , 169 F. App'x 387 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 1, 2006
Charles R. Fulbruge III
Clerk
No. 04-60745
Summary Calendar
MERRYL DELYSE SQUAIR; ALANA SQUAIR,
Petitioners,
versus
ALBERTO R. GONZALEZ, U. S. ATTORNEY GENERAL,
Respondent.
--------------------
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A78 602 855
BIA No. A78 602 856
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Before KING, WIENER, and DeMOSS, Circuit Judges.
PER CURIAM:*
Petitioners Merryl Squair and her adopted daughter, Alana
Squair, who are white citizens of Zimbabwe, petition for review of
the order of the Board of Immigration Appeals (BIA) dismissing
their appeal of the decision of the immigration judge (IJ) denying
their application for asylum, withholding of removal, and relief
under the Convention Against Torture (CAT). The IJ ordered the
petitioners removed to South Africa.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
As the BIA summarily and without a written opinion affirmed
the IJ’s decision, it is the final agency determination for
judicial review. See 8 C.F.R. § 1003.1(e)(4) (2005); Soadjede v.
Ashcroft, 324 F.3d 830, 832-33 (5th Cir. 2003). We shall uphold
the factual finding that an alien is not eligible for asylum if
that finding is supported by substantial evidence. Gomez-Mejia v.
INS, 56 F.3d 700, 702 (5th Cir. 1995). The petitioners have the
burden to “show that the evidence he presented was so compelling
that no reasonable factfinder could fail to find the requisite fear
of persecution.” Jukic v. INS, 40 F.3d 747, 749 (5th Cir. 1994)
(quotation marks omitted).
The petitioners’ evidence of verbal harassment does not rise
to the level of persecution; neither does their evidence of
persecution of white farmers establish that the petitioners, who
are not farmers, have been persecuted or have a well-founded fear
of future persecution. See Abdel-Masieh v. INS, 73 F.3d 579, 584
(5th Cir. 1996). As the petitioners have not shown persecution or
a well-founded fear of persecution, as required for obtaining
asylum, they have also failed to show a “clear probability” of
persecution as required by the more stringent standard for
withholding of deportation. See Faddoul v. INS, 37 F.3d 185, 188
(5th Cir. 1994). Similarly, they have failed to clear “the higher
bar of torture” as required for relief under the CAT. See Efe v.
Ashcroft, 293 F.3d 899, 907 (5th Cir. 2002).
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The petitioners also assert that the IJ erred in finding that
they were ineligible for asylum because they were “firmly
resettled” in South Africa. We need not decide this question:
Even if the petitioners prevailed on the resettlement issue, they
have failed to establish entitlement to discretionary asylum on
account of persecution.
The petitioners next contend that the BIA violated its own
rules by referring their appeal to a single member of the BIA.
They argue that a three-member panel should have considered “the
detailed, sensitive, and nuanced” resettlement issue. As the
resettlement issue was not determinative of their request for
relief, however, any IJ error concerning firm resettlement was
harmless or nonmaterial; and, in light of the other grounds for
denying relief, the legal question of firm resettlement was so
insubstantial that three-member review was not warranted. See
Garcia-Melendez v. Ashcroft, 351 F.3d 657, 662 (5th Cir. 2003).
The petitioners go on to contend that 8 U.S.C. § 1229c(b) is
unconstitutional under the Equal Protection Clause of the 14th
Amendment. They argue that there is no rational basis for barring
voluntary departure for aliens who have been in the United States
for less than a year, while allowing voluntary departure for aliens
who have been in the United States for more than a year.
Under well-established Equal Protection principles, the
petitioners have failed to carry their burden of negating “every
conceivable basis” which might support the statutory classification
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they challenge. See FCC v. Beach Communications, Inc., 508 U.S.
307, 315 (1993). Further, the “legislative choice is not subject
to courtroom fact-finding and may be based on rational speculation
unsupported by evidence or empirical data.” Id. We agree with the
Ninth Circuit that “Congress presumably determined that those
aliens with at least a year’s presence had accumulated sufficient
interests to warrant time to settle their affairs in this country,”
thereby meriting the privilege of voluntary departure. See
Tovar-Landin v. Ashcroft, 361 F.3d 1164, 1167 (9th Cir. 2004)
(quotation marks omitted).
The petition for review is DENIED.
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