Mayra Rivas-Rodriguez v. Eric Holder, Jr., No. 09-1239 (4th Cir. 2009)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-1239 MAYRA RIVAS-RODRIGUEZ, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Submitted: November 5, 2009 Decided: December 10, 2009 Before WILKINSON and AGEE, Circuit Judges, and HAMILTON, Senior Circuit Judge. Petition denied by unpublished per curiam opinion. Jennifer C. Lu, HOWREY, LLP, East Palo Alto, California; Glen W. Rhodes, HOWREY, LLP, San Francisco, California, for Petitioner. Tony West, Assistant Attorney General, David V. Bernal, Assistant Director, Lindsay E. Williams, 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 Unpublished opinions are not binding precedent in this circuit.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: Mayra Salvador, Rivas-Rodriguez, petitions Immigration for Appeals review ( Board ) a of native an and order dismissing citizen of her of from appeal El Board the of the immigration judge s order denying her applications for asylum, withholding of removal and Against Torture ( CAT ). withholding under the Convention Because the evidence does not compel a different result, we deny the petition for review. The Immigration and Nationality Act ( INA ) authorizes the Attorney General to confer asylum on any refugee. § 1158(a) (2006). 8 U.S.C. It defines a refugee as a person unwilling or unable to return to 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 Persecution opinion. involves 8 the U.S.C. § 1101(a)(42)(A) infliction or threat (2006). of death, torture, or injury to one s person or freedom, on account of one of the enumerated grounds. . . . 177 (4th Cir. 2005) (internal Li v. Gonzales, 405 F.3d 171, quotation marks and citations 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) (2009), and can establish refugee status based on past persecution in her native country 2 on account of a protected ground. (2009). Without establish a ground. Ngarurih 2004). The regard well-founded v. to past fear of Ashcroft, well-founded 8 C.F.R. § 1208.13(b)(1) persecution, persecution 371 fear F.3d subjective and an objective component. on 182, standard an alien a can protected 187 (4th contains Cir. both a The objective element requires a showing of specific, concrete facts that would lead a reasonable person Gandziami-Mickhou 2006). The presentation in like v. Gonzales, subjective of candid, circumstances to fear 445 F.3d 351, component can be credible, and persecution. 353 met through sincere demonstrating a genuine fear of persecution. (4th Cir. the testimony The subjective fear [must have] some basis in the reality of the circumstances and [be] validated with specific, concrete facts . . . and it cannot be mere irrational apprehension. Li, 405 F.3d at 176 (internal quotation marks and citations omitted). To establish eligibility for withholding of removal, an alien must show a clear probability that, if she was removed to her native country, her life or freedom would be threatened on account of a protected ground. (2006); see 2004). Camara v. Ashcroft, 378 8 U.S.C. § 1231(b)(3)(A) F.3d 361, 370 (4th Cir. A clear probability means that it is more likely than not the alien would be subject to persecution. 467 U.S. 407, 429-30 (1984). INS v. Stevic, The protected ground must be a 3 central reason for being targeted for persecution. reason is one that is more than incidental, A central tangential, superficial, or subordinate to another reason for harm. See Quinteros-Mendoza v. Holder, 556 F.3d 159, 164 (4th Cir. 2009) (quoting In re J-B-N-, 24 I. & N. Dec. 208, 214 (BIA 2007)). A determination regarding eligibility for asylum or withholding of removal is affirmed if supported by substantial evidence on the record considered as a whole. Zacarias, 502 U.S. 478, 481 (1992). INS v. Elias- 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 BIA s interpretation of the INA and any attendant regulations. Lin v. Mukasey, 517 F.3d 685, 691-92 (4th Cir. 2008). court will reverse the Board only if the evidence This . . . 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 find the evidence does not compel the finding that Rivas-Rodriguez was persecuted or has a well-founded fear of persecution because of her membership in a particular social group. The record supports the finding that the gangs in San 4 Salvador were indiscriminate with whom they targeted. In addition, substantial evidence supports the finding that RivasRodriguez would be targeted regardless of her membership in her particular social group. We also find substantial evidence supports the finding that it is not more likely than not that Rivas-Rodriguez will be tortured at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. 8 C.F.R. § 1208.18(a)(1) (2009). Accordingly, dispense with oral we deny argument the petition because the for facts review. and We legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. PETITION DENIED 5

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