Bao Den Chen v. Holder , 351 F. App'x 795 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-1201
BAO DEN CHEN; SHUNQIN CHEN,
Petitioners,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: October 6, 2009 Decided: November 10, 2009
Before MICHAEL, SHEDD, and DUNCAN, Circuit Judges.
Petition dismissed in part and denied in part by unpublished per
curiam opinion.
Gary J. Yerman, New York, New York, for Petitioners. Tony West,
Assistant Attorney General, Jennifer L. Lightbody, Senior
Litigation Counsel, Aimee J. Frederickson, UNITED STATES
DEPARTMENT OF JUSTICE, Office of Immigration Litigation,
Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Bao Den Chen and Shunqin Chen, both natives and
citizens of China, seek review of an order of the Board of
Immigration Appeals (Board) affirming the decision of the
Immigration Judge denying relief from removal. The Chens first
dispute the Board’s finding that their asylum applications were
not timely filed and that no exceptions applied to excuse the
untimeliness. We lack jurisdiction to review this determination
pursuant to 8 U.S.C. § 1158(a)(3) (2006). See Gomis v. Holder,
571 F.3d 353, 358-59 (4th Cir. 2009). Given this jurisdictional
bar, we may not review the underlying merits of the Chens’
asylum claim.
The Chens also contend that the Board erred in denying
their request for withholding of removal. “To qualify for
withholding of removal, a petitioner must show that he faces a
clear probability of persecution because of his race, religion,
nationality, membership in a particular social group, or
political opinion.” Rusu v. INS, 296 F.3d 316, 324 n.13 (4th
Cir. 2002) (citing INS v. Stevic, 467 U.S. 407, 430 (1984)).
Based on our review of the record, we find that the Chens have
not made the requisite showing. Likewise, we uphold the finding
that the Chens failed to demonstrate that it is more likely than
not that they would be tortured if removed to China. See 8
C.F.R. § 1208.16(c)(2) (2009).
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Accordingly, we 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 the court and argument would not aid the
decisional process.
PETITION DISMISSED IN PART
AND DENIED IN PART
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