Meiqin Chen v. Eric Holder, Jr. , 546 F. App'x 248 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1622
MEIQIN CHEN,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: October 22, 2013 Decided: November 21, 2013
Before MOTZ, DIAZ, and FLOYD, Circuit Judges.
Dismissed in part; denied in part by unpublished per curiam
opinion.
Meiqin Chen, Petitioner Pro Se. Laura M.L. Maroldy, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Meiqin Chen, a native and citizen of the People’s
Republic of China, petitions for review of an order of the Board
of Immigration Appeals dismissing her appeal from the
Immigration Judge’s order denying her applications for asylum,
withholding of removal, and protection under the Convention
Against Torture.
Chen first challenges the finding below that no
exception applied to excuse the untimely filing of her asylum
application. Under 8 U.S.C. § 1158(a)(3), the Attorney
General’s decision regarding whether an alien has complied with
the one-year time limit for filing an application for asylum, or
has established changed or extraordinary circumstances
justifying waiver of that time limit, is not reviewable by any
court. See Gomis v. Holder, 571 F.3d 353, 358-59 (4th Cir.
2009). Although 8 U.S.C. § 1252(a)(2)(D) provides that nothing
in “any other provision of this chapter . . . which limits or
eliminates judicial review, shall be construed as precluding
review of constitutional claims or questions of law,” this court
has held that the question of whether an asylum application is
untimely or whether the changed or extraordinary circumstances
exception applies “is a discretionary determination based on
factual circumstances.” Gomis, 571 F.3d at 358. Accordingly,
“absent a colorable constitutional claim or question of law, our
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review of the issue is not authorized by § 1252(a)(2)(D).” Id.
Because Chen fails to raise any such issues, we lack
jurisdiction to review this finding. We therefore dismiss the
petition for review of Chen’s asylum claim.
Next, Chen disputes the conclusion that she failed to
qualify for the relief of withholding of removal. “Withholding
of removal is available under 8 U.S.C. § 1231(b)(3) if the alien
shows that it is more likely than not that her life or freedom
would be threatened in the country of removal because of her
race, religion, nationality, membership in a particular social
group, or political opinion.” Gomis, 571 F.3d at 359 (internal
quotation marks omitted). We have reviewed the record and
conclude that substantial evidence supports the agency’s
determination that Chen failed to demonstrate past persecution
or a clear probability of future persecution. Because the
evidence does not compel us to conclude to the contrary, we
uphold the denial of relief. See Djadjou v. Holder, 662 F.3d
265, 273 (4th Cir. 2011), cert. denied, 133 S. Ct. 788 (2012).
Finally, we uphold the finding below that Chen did not
demonstrate that it is more likely than not that she would be
tortured if removed to China so as to qualify for protection
under the Convention Against Torture. See 8 C.F.R.
§ 1208.16(c)(2).
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We accordingly dismiss in part and deny in part the
petition for review. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the
decisional process.
DISMISSED IN PART;
DENIED IN PART
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