* Pursuant to 5TH CIR. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

March 29, 2005

Charles R. Fulbruge III

Clerk

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

No. 04-60247

Summary Calendar

GERTRUDE NKONYE CHIDI,

Petitioner-Appellant,

versus 

ALBERTO P. GONZALES, U.S. ATTORNEY GENERAL,

Defendant-Appellee.

Petition for Review of an Order of the 

Board of Immigration Appeals

(A 78 126 689)

Before JONES, BARKSDALE, and PRADO, Circuit Judges.

PER CURIAM:*

Gertrude Nkonye Chidi, a native and citizen of Nigeria,

petitions for review of the decision by Board of Immigration

Appeals (BIA), affirming the Immigration Judge’s (IJ) denial (1) of

Chidi’s application for asylum as time-barred and (2) of

withholding of removal. To be eligible for withholding of removal,

Chidi must demonstrate it is “more likely than not” her “life or

freedom would be threatened in [the country to which she is being

removed] because of [her] race, religion, nationality, membership
in a particular group, or political opinion”. Bah v. Ashcroft, 341

F.3d 348, 351 (5th Cir. 2003) (citing 8 U.S.C.A. § 1231(b)(3)(A),

INA § 241 (b)(3)(A)). 

Chidi maintains she sufficiently established that: if she is

returned to Nigeria, she would be under the control of village

leaders, who wish to subject her to Female Genital Mutilation

(FGM); and neither her mother nor her husband would be able to

protect her. She contends the IJ erred in concluding that, because

she had returned to Nigeria a number of times without being

subjected to FGM, she would not be harmed if she returned again.

Chidi asserts she was unharmed on previous trips because four

occurred while her father, who was against FGM, was alive. She

contends the evidence establishes that up to 60% of Nigerian women

are subject to FGM; and the Nigerian government does not protect

women from this practice. Chidi asserts it is more likely than not

that she will be persecuted because of her membership in a

particular group (women not subjected to FGM) if she returns to

Nigeria.

We review the BIA order, not the IJ’s decision. Chun v. INS,

40 F.3d 76, 78 (5th Cir. 1994). The BIA reviewed the record and

agreed with the IJ that: Chidi’s application for asylum was timebarred because Chidi filed it outside the one-year time period and

showed no changed or extraordinary circumstances to excuse the late

filing; Chidi had not met her burden of establishing past

persecution or a well-founded fear of persecution because of her
membership in a particular group; and she had not proved it was

more likely than not that she would be subjected to FGM upon return

to Nigeria.

Chidi does not challenge the determination that her asylum

application was time-barred. Therefore, she has waived this

issue. See Yohey v. Collins, 985 F.2d 222, 223-24 (5th Cir. 1993);

FED. R. APP. P. 28(a)(6).

We review for substantial evidentiary support in the record

the BIA’s decision that an alien is ineligible for withholding of

removal. Chun, 40 F.3d at 78. “Under substantial evidence review,

we may not reverse the BIA’s factual determination unless we find

not only that the evidence supports a contrary conclusion, but that

the evidence compels it.” Id. (emphasis in original).

The finding that Chidi had not demonstrated a clear

probability of future persecution is based on the record evidence

and is substantially reasonable. Although the State Department

documents submitted by Chidi showed that a mother opposed to FGM

might not be able to protect her daughter if the daughter’s father

or husband wished to have FGM performed, there is no evidence that

either Chidi’s husband or any family member has advocated having

FGM performed on her. In sum, the evidence does not compel “a

contrary conclusion” to that reached by the BIA: that Chidi was not

entitled to withholding of removal. 

DENIED