Meiqiong Xu v. Holder ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-1064
MEIQIONG XU,
Petitioner,
v.
ERIC H. HOLDER, JR.,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: February 27, 2009 Decided: March 23, 2009
Before WILKINSON, MICHAEL, and TRAXLER, Circuit Judges.
Petition dismissed in part and denied in part by unpublished per
curiam opinion.
Jason A. Nielson, LAW OFFICES OF JOE ZHENGHONG ZHOU AND
ASSOCIATES, PLLC, Flushing, New York, for Petitioner. Gregory G.
Katsas, Assistant Attorney General, Leslie M. McKay, Assistant
Director, Kristin K. Edison, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Meiqiong Xu, a native and citizen of China, petitions
for review of an order of the Board of Immigration Appeals
(Board) adopting and affirming the Immigration Judge’s (IJ)
decision denying her applications for relief from removal. Xu
first challenges the Board’s finding that she waived appeal of
the IJ’s finding that she filed an untimely asylum application
and no exceptions applied. We find it unnecessary to address
this claim because the Board found alternatively that Xu failed
to show changed or extraordinary circumstances justifying the
untimely filing of her asylum application, and we lack
jurisdiction to review this determination. See 8 U.S.C.
§ 1158(a)(3) (2006); Niang v. Gonzales, 492 F.3d 505, 510 n.5
(4th Cir. 2007); Almuhtaseb v. Gonzales, 453 F.3d 743, 747-48
(6th Cir. 2006) (collecting cases). Given that the Board
reviewed the finding at issue, we reject Xu’s assertion that she
was denied due process when the Board found that she waived
appeal.
Next, Xu challenges the finding below that she 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
2
Cir. 2002) (citing INS v. Stevic, 467 U.S. 407, 430 (1984)).
Having conducted our review, we conclude that substantial
evidence supports the finding that Xu did not establish
eligibility for withholding of removal. We likewise uphold the
finding below that Xu failed to demonstrate that it is more
likely than not that she would be tortured if removed to China.
8 C.F.R. § 1208.16(c)(2) (2008). Finally, we decline to
consider evidence in the administrative record that was not the
basis for the Board’s decision currently before us, see 8 U.S.C.
§ 1252(b)(4)(A) (2006), and deny Xu’s motion for abeyance
pending a ruling on her motion to reopen as moot.
We thus 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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