United States 4th Circuit Court of Appeals Reports


WELDESENBET v. GONZALES, 06-1483 (4th Cir. 1-4-2007) THOMAS
Attorney General, Respondent. No. 06-1483. United States
Court of Appeals, Fourth Circuit. Submitted: November 15,
2006. Decided: January 4, 2007.

[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] On Petition for Review of an Order of the
Board of Immigration Appeals. (A95-263-107)

Before MICHAEL, TRAXLER, and KING, Circuit Judges.

Petition denied by unpublished per curiam opinion.

Andres Cayetano Benach, MAGGIO & KATTAR, Washington, D.C.,
for Petitioner. Peter D. Keisler, Assistant Attorney
General, Carol Federighi, Senior Litigation Counsel, Judith
A. Hagley, Office of Immigration Litigation, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this


Thomas Ayalew Weldesenbet, a native and citizen of
Ethiopia, petitions for review of the Board of Immigration
Appeals’ (“Board”) order denying his motion to remand and
dismissing his appeal from the immigration judge’s order
denying his applications for withholding from removal and
withholding under the Convention Against Torture (“CAT”). We
deny the petition for review.

We review the Board’s denial of a motion to remand for
abuse of discretion. See Obioha v. Gonzales, 431 F.3d 400,
408 (4th Cir. 2005) (setting forth standard of review).
Whether Weldesenbet’s ineffective assistance of counsel
claim rises to the level of a due process claim is reviewed
de novo. Figeroa v. INS, 886 F.2d 76, 78 (4th Cir. 1989).
We find the Board did not err in determining whether
Weldesenbet was prejudiced by counsel’s alleged ineffective
assistance. See 8 C.F.R. § 1003.1(d)(3)(ii) (2006);
Savino v. Murray, 82 F.3d 593, 598 (4th Cir. 1996). We
further agree with the Board that Weldesenbet failed to
establish prejudice.

In addition, we find the immigration judge used the proper
analysis in determining whether Weldesenbet was entitled to
withholding from removal and substantial evidence supports
the finding that there was a fundamental change of

Accordingly, we deny the petition for review. 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.