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Xu v. Gonzales, 05-2171 (2006)

Court: Court of Appeals for the Fourth Circuit Number: 05-2171 Visitors: 37
Filed: Jul. 11, 2006
Latest Update: Mar. 28, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 05-2171 JIN FENG XU, Petitioner, versus ALBERTO R. GONZALES, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. (A95-869-531) Submitted: June 23, 2006 Decided: July 11, 2006 Before WIDENER, NIEMEYER, and TRAXLER, Circuit Judges. Petition denied by unpublished per curiam opinion. Henry Zhang, ZHANG AND ASSOCIATES, P.C., New York, New York, for Petitioner. Rod J. Rosenstein, Uni
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                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 05-2171



JIN FENG XU,

                                                         Petitioner,

          versus


ALBERTO R. GONZALES, Attorney General,

                                                         Respondent.


On Petition for Review of an Order of the Board of Immigration
Appeals. (A95-869-531)


Submitted:   June 23, 2006                 Decided:   July 11, 2006


Before WIDENER, NIEMEYER, and TRAXLER, Circuit Judges.


Petition denied by unpublished per curiam opinion.


Henry Zhang, ZHANG AND ASSOCIATES, P.C., New York, New York, for
Petitioner. Rod J. Rosenstein, United States Attorney, Jonathan
Biran, Assistant United States Attorney, Baltimore, Maryland, for
Respondent.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

          Jin   Feng    Xu,   a    native    and   citizen   of   the   People’s

Republic of China, petitions for review of an order of the Board of

Immigration   Appeals    (Board)     affirming      the   immigration   judge’s

denial of her requests for asylum, withholding of removal, and

protection under the Convention Against Torture.*

          In her petition for review, Xu contends that the Board

and the immigration judge erred in denying her application for

withholding of removal.           We will reverse the Board only if the

evidence “was so compelling that no reasonable fact finder could

fail to find the requisite fear of persecution.”                  INS v. Elias-

Zacarias, 
502 U.S. 478
, 483-84 (1992).             Credibility determinations

of the immigration judge and the Board are entitled to deference as

long as they are supported by substantial evidence. See Figeroa v.

INS, 
886 F.2d 76
, 78 (4th Cir. 1989).               Based upon the materials

before us on appeal, the immigration judge’s decision, and the


     *
      Xu did not challenge the immigration judge’s finding that her
asylum claim was statutorily barred as untimely either here or
before the Board. Further, she raised no specific claim regarding
the Convention Against Torture before the Board.       Thus, these
claims fail for lack of exhaustion, see 8 U.S.C. § 1252(d)(1)
(2000) (“A court may review a final order of removal only if the
alien has exhausted all administrative remedies available to the
alien as of right”); Asika v. Ashcroft, 
362 F.3d 264
, 267 n.3 (4th
Cir. 2004), cert. denied, 
543 U.S. 1049
 (2005) (holding that the
court lacks jurisdiction to consider an argument that was not
raised before the Board), and as abandoned in this court, see
Edwards v. City of Goldsboro, 
178 F.3d 231
, 241 n.6 (4th Cir. 1999)
(holding failure to raise specific issue in opening brief
constitutes abandonment of that issue under Fed. R. App. P.
28(a)(9)(A)).

                                     - 2 -
Board’s order, we find the evidence supports the Board’s and the

immigration   judge’s    conclusion    that   Xu   was   not    credible.

Accordingly, Xu’s challenge to the denial of her application for

withholding   from   removal   must   fail.   We   further     uphold   the

determination that Xu’s asylum application was frivolous.           See 8

C.F.R. § 1208.20 (2006).

          We therefore 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




                                 - 3 -

Source:  CourtListener

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