Bernard Obi Effiom v. Gonzales, 433 F.3d 86, 93 1st Cir. 2005 . On May 11, 2005, Congress enacted the Real…

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-1888
BERNARD OBI EFFIOM,
Petitioner,
versus
PETER D. KEISLER, Acting Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals. (A97-920-529)
Submitted: September 7, 2007 Decided: October 17, 2007
Before WILKINSON, KING, and SHEDD, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Danielle Beach-Oswald, BEACH-OSWALD, Washington, D.C., for
Petitioner. Peter D. Keisler, Assistant Attorney General, Patricia
A. Smith, Senior Litigation Counsel, David Schor, Office of
Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Bernard Obi Effiom, a native and citizen of Cameroon,
petitions for review of an order of the Board of Immigration
Appeals (“Board”) adopting and affirming the immigration judge’s
order denying his applications for asylum, withholding of removal,
and protection under the Convention Against Torture (“CAT”).
Effiom challenges the immigration judge’s findings that his asylum
application was untimely and that he did not establish eligibility
for asylum or withholding of removal.
The timeliness of an alien’s asylum application is
usually a question of fact. See Mehilli v. Gonzales, 433 F.3d 86,
93 (1st Cir. 2005). On May 11, 2005, Congress enacted the Real ID
Act, which added a new subsection to the judicial review
provisions. This subsection stated that discretionary and factual
determinations are outside the jurisdiction of the court of
appeals. 8 U.S.C.A. § 1252(a)(2)(D) (West 2005); see also
Vasile v. Gonzales, 417 F.3d 766, 768 (7th Cir. 2005). The
exception to this provision is for constitutional claims or
questions of law raised by aliens seeking discretionary relief.
Higuit v. Gonzales, 433 F.3d 417, 419 (4th Cir.), cert. denied, 126
S. Ct. 2973 (2006). Despite Effiom’s contentions, the judge’s
consideration of evidence at the trial and its subsequent
conclusion is factual in nature. Accordingly, we do not have
jurisdiction to review Effiom’s asylum claim.

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Additionally, we uphold the immigration judge’s denial of
Effiom’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.] § 1231(b)(3).” Camara v. Ashcroft, 378
F.3d 361, 367 (4th Cir. 2004). Because we find Effiom would not be
able to show that he is eligible for asylum based on the record
presented, we find he cannot meet the higher standard for
withholding of removal.
We also hold that any alleged defects in the removal
hearing transcript did not prejudice Effiom’s ability to present
his appeal.
Accordingly, we deny the petition for review for the
reasons stated by the Board. 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

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