Kimani v. Holder , 432 F. App'x 269 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-1932
CYRUS NGANGA KIMANI,
Petitioner,
v.
ERIC H. HOLDER, JR.,
Respondent.
On Petition for review of an Order of the Board of Immigration
Appeals.
Submitted: May 18, 2011 Decided: May 31, 2011
Before WILKINSON, WYNN, and DIAZ, Circuit Judges.
Petition dismissed in part, denied in part by unpublished per
curiam opinion.
Anser Ahmad, AHMAD LAW OFFICES, P.C., Harrisburg, Pennsylvania,
for Petitioner. Tony West, Assistant Attorney General, James A.
Hunolt, Senior Litigation Counsel, Jesse D. Lorenz, OFFICE OF
IMMIGRATION LITIGATION, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Cyrus Nganga Kimani, a native and citizen of Kenya,
petitions for review of an order of the Board of Immigration
Appeals (Board) dismissing his appeal from the Immigration
Judge’s denial of his applications for relief from removal.
Kimani first disputes the agency’s finding that no
exceptions applied to excuse the untimeliness of his asylum
application. We have reviewed Kimani’s claims in this regard
and conclude that we do not have jurisdiction to review this
determination. See 8 U.S.C. § 1158(a)(3) (2006); Lizama v.
Holder, 629 F.3d 440, 445-46 (4th Cir. 2011); Gomis v. Holder,
571 F.3d 353, 358-59 (4th Cir. 2009), cert. denied, 130 S. Ct.
1048 (2010). Because the Board’s finding of untimeliness is
dispositive of Kimani’s asylum claim, we do not address his
contention that he established eligibility for asylum.
Accordingly, we dismiss the petition for review in part with
respect to this claim.
Next, Kimani challenges the Board’s finding that he
failed to qualify 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)). We
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have reviewed the administrative record and find that
substantial evidence supports the finding below that Kimani did
not meet his burden to qualify for this relief. Finally, we
uphold the agency finding that Kimani failed to qualify for
protection under the Convention Against Torture. See 8 C.F.R.
§ 1208.16(c)(2) (2010).
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, DENIED IN PART
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