Hui Xiao v. Eric Holder, Jr., No. 10-1107 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-1107 HUI FANG XIAO, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Submitted: July 28, 2010 Decided: August 11, 2010 Before SHEDD and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Petition denied by unpublished per curiam opinion. Gregory Marotta, LAW OFFICE OF RICHARD TARZIA, Belle Mead, New Jersey, for Petitioner. Tony West, Assistant Attorney General, Mary Jane Candaux, Assistant Branch Director, Matthew A. Connelly, 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 Unpublished opinions are not binding precedent in this circuit.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: Hui Fang Xiao, a native and citizen of the People s Republic of China, 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 and that she withholding of removal. Xiao failed to first establish challenges her the eligibility determination 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 INS v. Elias-Zacarias, 502 U.S. requisite fear of persecution. 478, 483-84 (1992). conclude that Xiao We have reviewed the evidence of record and fails compels a contrary result. to demonstrate that the evidence We therefore find that substantial evidence supports the denial of relief. Additionally, we uphold the denial of Xiao 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.] ยง 1231(b)(3). 378 F.3d 361, 367 (4th Cir. 2004). 2 Camara v. Ashcroft, Because Xiao failed to establish that she is eligible for asylum, she cannot meet the higher standard for withholding of removal. Accordingly, dispense with oral we deny argument the petition because the for review. facts and We legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. PETITION DENIED It does not appear that Xiao requested relief under the Convention Against Torture before the immigration judge; the Board nonetheless addressed Xiao s contention on appeal that she was entitled to such relief. Although the Board s decision to address this issue arguably excused Xiao s failure to raise it before the immigration judge, cf. Xian Tuan Ye v. Dep t of Homeland Security, 446 F.3d 289, 296-97 (6th Cir. 2006), we note that she failed to raise any specific claims regarding her eligibility for such relief before this court. We therefore conclude that Xiao has waived appellate review of this claim. See Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir. 1999). 3
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