UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-1350

NITA WIDYANTI,

Petitioner,

versus

ALBERTO R. GONZALES, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration

Appeals. (A79-508-408)

Submitted: October 25, 2004 Decided: May 26, 2005

Before NIEMEYER, GREGORY, and DUNCAN, Circuit Judges.

Petition denied by unpublished per curiam opinion.

Stanley J. Ellenberg, LAW OFFICES OF STANLEY ELLENBERG &

ASSOCIATES, Philadelphia, Pennsylvania, for Petitioner. Peter D.

Keisler, Assistant Attorney General, Linda S. Wendtland, Assistant

Director, John S. Hogan, OFFICE OF IMMIGRATION LITIGATION,

Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Nita Widyanti, a native and citizen of Indonesia,

petitions for review of an order of the Board of Immigration

Appeals (“Board”) affirming, without opinion, the immigration

judge’s order denying her applications for asylum, withholding of

removal, and protection under the Convention Against Torture.

In her petition for review, Widyanti challenges the

immigration judge’s determination that she failed to establish her

eligibility for asylum. To obtain reversal of a determination

denying eligibility for relief, an alien “must show that the

evidence [s]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 Widyanti fails to

show that the evidence compels a contrary result. Accordingly, we

cannot grant the relief that she seeks.

Additionally, we uphold the immigration judge’s denial of

Widyanti’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 Widyanti fails to show that
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she is eligible for asylum, she cannot meet the higher standard for

withholding of removal. 

We also find that Widyanti fails 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) (2004). We find

that Widyanti fails to make the requisite showing.

Finally, Widyanti claims that the Board’s refusal to

allow her to file an untimely opening brief in support of her

appeal violated her rights to due process. In order to succeed on

a procedural due process claim, Widyanti must make a showing of

prejudice. See Rusu v. INS, 296 F.3d 316, 324 (4th Cir. 2002);

Farrokhi v. INS, 900 F.2d 697, 703 n.7 (4th Cir. 1990). We may

find prejudice only “when the rights of [an] alien have been

transgressed in such a way as is likely to impact the results of

the proceeding.” Rusu, 296 F.3d at 320-21 (internal quotations and

citation omitted). We find that Widyanti fails to show that the

results of her proceeding would have been different if she had been

allowed to file a brief and therefore fails to make the requisite

showing of prejudice.

Accordingly, we deny the petition for review. We

dispense with oral argument because the facts and legal contentions
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are adequately presented in the materials before the court and

argument would not aid the decisional process.

PETITION DENIED