Wilson John Machado; Jorema Cabrera Arellano v. MICHAEL B. MUKASEY, Attorney General

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-1228
WILSON JOHN MACHADO; JOREMA CABRERA ARELLANO,
Petitioners,
v.
MICHAEL B. MUKASEY, Attorney General,
Respondent.
No. 07-1998
WILSON JOHN MACHADO; JOREMA CABRERA ARELLANO,
Petitioners,
v.
MICHAEL B. MUKASEY, Attorney General,
Respondent.
On Petitions for Review of Orders of the Board of Immigration
Appeals.
Submitted: August 13, 2008 Decided: September 12, 2008
Before WILKINSON, KING, and GREGORY, Circuit Judges.
Vacated by Supreme Court, March 1, 2010

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Petitions denied by unpublished per curiam opinion.
Christine Lockhart Poarch, THE POARCH LAW FIRM, PC, Salem,
Virginia, for Petitioners. Jeffrey S. Bucholtz, Acting Assistant
Attorney General, Stephen J. Flynn, Senior Litigation Counsel,
Annette M. Wietecha, 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Unpublished opinions are not binding precedent in this circuit.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:
In these consolidated appeals, Wilson John Machado and
his wife, Jorema Cabrera Arellano, petition for review of two
separate orders of the Board of Immigration Appeals (“Board”): (1)
dismissing their appeal from the immigration judge’s denial of
their requests for asylum, withholding of removal, and protection
under the Convention Against Torture; and (2) denying their motion
to reopen. Machado is the primary applicant for asylum; the claims
of his wife are derivative of his application. See 8 U.S.C. §
1158(b)(3) (2006); 8 C.F.R. § 1208.21(a) (2008).
In Case No. 07-1228, the Petitioners first challenge the
determination that Machado failed to establish his eligibility for
asylum. To obtain reversal of a determination denying eligibility
for relief, an alien “must show that the evidence he presented was
so compelling that no reasonable factfinder could fail to find the
requisite fear of persecution.” INS v. Elias-Zacarias, 502 U.S.
478, 483-84 (1992). We have reviewed the evidence of record and
conclude that the Petitioners fail to show that the evidence
compels a contrary result. Accordingly, we cannot grant the relief
that they seek.
Additionally, we uphold the denial of Machado’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

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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 Machado failed to show that
he is eligible for asylum, he cannot meet the higher standard for
withholding of removal.
We also find that substantial evidence supports the
finding that Machado failed to meet the standard for relief under
the Convention Against Torture. To obtain such relief, an
applicant must establish that “it is more likely than not that he
or she would be tortured if removed to the proposed country of
removal.” 8 C.F.R. § 1208.16(c)(2) (2008). We find that Machado
failed to make the requisite showing before the immigration court.
We further find that the immigration judge did not err in analyzing
Machado’s claim as required in our decision in Camara. See Camara,
378 F.3d at 371-72. Accordingly, we deny the petition for review
in Case No. 07-1228.
In Case No. 07-1998, the Petitioners contend that the
Board abused its discretion in denying their motion to reopen. The
Petitioners based their motion on the contention that they received
ineffective assistance of counsel. In light of our recent holding
in Afanwi v. Mukasey, 526 F.3d 788, 796-99 (4th Cir. 2008), in
which we held that there is no constitutional right under the Fifth
Amendment to effective assistance of counsel in removal
proceedings, we deny the petition for review.

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Accordingly, we deny both petitions for review as set
forth above. 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.
PETITIONS DENIED

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