                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                    March 1, 2006

                                                           Charles R. Fulbruge III
                                                                   Clerk
                            No. 04-60745
                          Summary Calendar


MERRYL DELYSE SQUAIR; ALANA SQUAIR,

                                      Petitioners,

versus

ALBERTO R. GONZALEZ, U. S. ATTORNEY GENERAL,

                                      Respondent.

                        --------------------
               Petition for Review of an Order of the
                    Board of Immigration Appeals
                         BIA No. A78 602 855
                         BIA No. A78 602 856
                        --------------------

Before KING, WIENER, and DeMOSS, Circuit Judges.

PER CURIAM:*

     Petitioners Merryl Squair and her adopted daughter, Alana

Squair, who are white citizens of Zimbabwe, petition for review of

the order of the Board of Immigration Appeals (BIA) dismissing

their appeal of the decision of the immigration judge (IJ) denying

their application for asylum, withholding of removal, and relief

under the Convention Against Torture (CAT).         The IJ ordered the

petitioners removed to South Africa.




     *
        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this opinion should not be published and is not precedent except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.
      As the BIA summarily and without a written opinion affirmed

the IJ’s     decision,      it   is   the       final    agency   determination       for

judicial review.         See 8 C.F.R. § 1003.1(e)(4) (2005); Soadjede v.

Ashcroft, 324 F.3d 830, 832-33 (5th Cir. 2003).                      We shall uphold

the factual finding that an alien is not eligible for asylum if

that finding is supported by substantial evidence.                    Gomez-Mejia v.

INS, 56 F.3d 700, 702 (5th Cir. 1995).                    The petitioners have the

burden to “show that the evidence he presented was so compelling

that no reasonable factfinder could fail to find the requisite fear

of persecution.”         Jukic v. INS, 40 F.3d 747, 749 (5th Cir. 1994)

(quotation marks omitted).

      The petitioners’ evidence of verbal harassment does not rise

to   the   level    of    persecution;      neither       does    their    evidence    of

persecution of white farmers establish that the petitioners, who

are not farmers, have been persecuted or have a well-founded fear

of future persecution.           See Abdel-Masieh v. INS, 73 F.3d 579, 584

(5th Cir. 1996).         As the petitioners have not shown persecution or

a well-founded fear of persecution, as required for obtaining

asylum, they have also failed to show a “clear probability” of

persecution    as    required      by    the      more    stringent       standard    for

withholding of deportation.             See Faddoul v. INS, 37 F.3d 185, 188

(5th Cir. 1994).         Similarly, they have failed to clear “the higher

bar of torture” as required for relief under the CAT.                       See Efe v.

Ashcroft, 293 F.3d 899, 907 (5th Cir. 2002).



                                            2
       The petitioners also assert that the IJ erred in finding that

they    were   ineligible   for   asylum   because   they   were   “firmly

resettled” in South Africa.        We need not decide this question:

Even if the petitioners prevailed on the resettlement issue, they

have failed to establish entitlement to discretionary asylum on

account of persecution.

       The petitioners next contend that the BIA violated its own

rules by referring their appeal to a single member of the BIA.

They argue that a three-member panel should have considered “the

detailed, sensitive, and nuanced” resettlement issue.              As the

resettlement issue was not determinative of their request for

relief, however, any IJ error concerning firm resettlement was

harmless or nonmaterial; and, in light of the other grounds for

denying relief, the legal question of firm resettlement was so

insubstantial that three-member review was not warranted.             See

Garcia-Melendez v. Ashcroft, 351 F.3d 657, 662 (5th Cir. 2003).

       The petitioners go on to contend that 8 U.S.C. § 1229c(b) is

unconstitutional under the Equal Protection Clause of the 14th

Amendment.     They argue that there is no rational basis for barring

voluntary departure for aliens who have been in the United States

for less than a year, while allowing voluntary departure for aliens

who have been in the United States for more than a year.

       Under   well-established    Equal   Protection   principles,   the

petitioners have failed to carry their burden of negating “every

conceivable basis” which might support the statutory classification

                                     3
they challenge.      See FCC v. Beach Communications, Inc., 508 U.S.

307, 315 (1993).     Further, the “legislative choice is not subject

to courtroom fact-finding and may be based on rational speculation

unsupported by evidence or empirical data.”        Id.   We agree with the

Ninth Circuit that “Congress presumably determined that those

aliens with at least a year’s presence had accumulated sufficient

interests to warrant time to settle their affairs in this country,”

thereby   meriting    the   privilege   of   voluntary   departure.   See

Tovar-Landin v. Ashcroft, 361 F.3d 1164, 1167 (9th Cir. 2004)

(quotation marks omitted).

     The petition for review is DENIED.




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