     Case: 09-60717     Document: 00511201632          Page: 1    Date Filed: 08/12/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                           August 12, 2010
                                     No. 09-60717
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

ANGELINE NDAYIKEZA,

                                                   Petitioner

v.

ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,

                                                   Respondent


                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                BIA No. A098 873 589


Before KING, DeMOSS, and DENNIS, Circuit Judges.
PER CURIAM:*
        Angeline Ndayikeza, a native and citizen of Burundi, has filed a petition
for review of the order of the Board of Immigration Appeals (BIA) dismissing her
appeal of the denial of her application for asylum, withholding of removal, and
protection under the Convention Against Torture (CAT). Ndayikeza contends
that the BIA erred in acquiescing to the Immigration Judge’s (IJ) determination
that her asylum application was untimely. Because the BIA’s decision regarding
asylum was not based on untimeliness of her application, her contentions

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                 No. 09-60717

regarding the timeliness of her asylum application are unavailing.              See
Ontunez-Tursios v. Ashcroft, 303 F.3d 341, 348 (5th Cir. 2002) (recognizing that
this court reviews the order of the BIA and will consider the underlying decision
of the IJ only if it had some impact upon the BIA’s decision).
      Ndayikeza also contends that the BIA erred in determining that she failed
to demonstrate that she had an objectively reasonable fear of persecution, which
she claimed stemmed from the killing of her parents in Burundi, that was on
account of race, religion, nationality, membership in a particular social group,
or political opinion. The BIA’s determination that an alien is not eligible for
asylum, withholding of removal, or CAT relief is reviewed under the substantial
evidence standard. Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006).
Under that standard, this court will not reverse the BIA’s decision unless the
evidence not only supports a contrary conclusion but compels it. Id. “The
applicant has the burden of showing that the evidence is so compelling that no
reasonable factfinder could reach a contrary conclusion.” Id.
      The Attorney General has the discretion to grant asylum to refugees. 8
U.S.C. § 1158(b)(1); Chen, 470 F.3d at 1135. A person who is outside of her
country is a refugee if she is unable or unwilling to return to, or avail herself of
the protection of, that country “because of persecution or a well-founded fear of
persecution on account of race, religion, nationality, membership in a particular
social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A); accord Chen, 470
F.3d at 1135. “To establish a well-founded fear of future persecution, an
applicant must demonstrate a subjective fear of persecution, and that fear must
be objectively reasonable.”     Chen, 470 F.3d at 1135 (citations and marks
omitted).
      Ndayikeza briefs no argument challenging the BIA’s determination that
the IJ did not err in denying asylum as a matter of discretion, and she has thus
waived any such challenge. See Calderon-Ontiveros v. INS, 809 F.2d 1050, 1052
(5th Cir. 1986). In any event, in light of the lack of evidence linking the death

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                                No. 09-60717

of her parents to any of the statutorily enumerated grounds for asylum, the
record does not compel a conclusion contrary to the BIA’s determination that
Ndayikeza failed to show that she had an objectively reasonable fear of
persecution in Burundi on account of any of the statutorily enumerated grounds.
      Given that Ndayikeza cannot satisfy the standard for eligibility for
asylum, Ndayikeza cannot meet the more demanding objective-likelihood-of-
persecution standard required to obtain withholding of removal. See Chen, 470
F.3d at 1138.   Additionally, while Ndayikeza does not brief any argument
challenging the BIA’s decision regarding CAT relief, the evidence nevertheless
does not compel a conclusion contrary to the BIA’s determination that she failed
to show that she more likely than not would face torture if she were removed to
Burundi. See id. at 1134, 1139.
      The petition for review is DENIED.




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