Goitom Mogos-Habte v. Eric Holder, Jr., No. 12-1667 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-1667 GOITOM MOGOS-HABTE, a/k/a Goltom Mogos Habte, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Submitted: February 20, 2013 Decided: February 28, 2013 Before MOTZ, KING, and DUNCAN, Circuit Judges. Petition denied by unpublished per curiam opinion. Jason A. Dzubow, DZUBOW, SARAPU & PILCHER, PLLC, Washington, D.C., for Petitioner. Stuart F. Delery, Principal Deputy Assistant Attorney General, Linda S. Wernery, Assistant Director, Kerry A. Monaco, 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 Unpublished opinions are not binding precedent in this circuit.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: Goitom Mogos-Habte, a native and citizen of Eritrea, petitions for review of an order of the Board of Immigration Appeals ( Board ) dismissing his appeal from the immigration judge s decision denying his requests for asylum and withholding of removal under the Immigration and Nationality Act ( INA ) * and denying his motion to remand. A determination regarding eligibility for asylum or withholding of removal under the INA is affirmed if supported by substantial evidence on the record considered INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). findings of fact, including findings on as a whole. Administrative 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 de issues are reviewed novo, affording appropriate deference to the [Board] s interpretation of the INA 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. * The agency granted Mogos-Habte s request for withholding of removal under the Convention Against Torture. 2 INS, 296 F.3d 316, 325 n.14 (4th Cir. 2002). Furthermore, [t]he agency decision that an alien is not eligible for asylum is conclusive unless manifestly abuse of discretion. contrary to the law and an 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 agency s finding that Mogos-Habte failed to meet his burden of establishing that his experiences with the Eritrean military constituted either past persecution or a well-founded fear account of a protected ground. of future persecution on We therefore uphold the denial of Mogos-Habte s requests for asylum and withholding of removal under the INA. See Camara v. Ashcroft, 378 F.3d 361, 367 (4th Cir. 2004). ( 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). ). We have also reviewed the denial of Mogos-Habte s motion to remand and find no abuse of discretion. See Onyeme v. INS, 146 F.3d 227, 234 (4th Cir. 1998) (setting forth standard of review). demonstrate As that found the by the evidence Board, he sought Mogos-Habte to present failed to was not available and could not have been discovered or presented at the 3 former hearing. 8 C.F.R. § 1003.2(c)(1) (2012). We further reject Mogos-Habte s contention that the Board should have taken administrative notice of his evidence under the commonly known facts exception set forth in 8 C.F.R. § 1003.1(d)(3)(iv) (2012). Accordingly, dispense with contentions are oral we deny argument adequately the petition because presented in the the for facts review. We and legal materials before this court and argument would not aid the decisional process. PETITION DENIED 4