UNPUBLISHED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Petitions denied by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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