Bashkim Bajraktari v. Eric Holder, Jr. , 547 F. App'x 329 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1562
BASHKIM BAJRAKTARI,
Petitioner,
v.
ERIC H. HOLDER, JR.,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: November 18, 2013 Decided: December 5, 2013
Before NIEMEYER, DAVIS, and FLOYD, Circuit Judges.
Petition dismissed in part, denied in part by unpublished per
curiam opinion.
Andrew P. Johnson, LAW OFFICES OF ANDREW P. JOHNSON, New York,
New York, for Petitioner. Stuart F. Delery, Assistant Attorney
General, Melissa Neiman-Kelting, Senior Litigation Counsel,
Anthony J. Messuri, Office of Immigration Litigation, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Bashkim Bajraktari, a native and citizen of Albania,
petitions for review of an order of the Board of Immigration
Appeals dismissing his appeal from the Immigration Judge’s order
denying his applications for asylum, withholding of removal, and
protection under the Convention Against Torture. We dismiss in
part and deny in part the petition for review.
Bajraktari challenges the finding below that no
exception applied to excuse the untimely filing of his asylum
application. Under 8 U.S.C. § 1158(a)(3) (2012), the Attorney
General’s decision regarding whether an alien has complied with
the one-year time limit for filing an application for asylum or
established changed or extraordinary circumstances justifying
waiver of that time limit is not reviewable by any court.
Gomis v. Holder, 571 F.3d 353, 358-59 (4th Cir. 2009). Although
8 U.S.C. § 1252(a)(2)(D) (2012) provides that nothing in
§ 1252(a)(2)(B), (C), “or 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 (emphasis omitted). Accordingly, “absent
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a colorable constitutional claim or question of law, [the
court’s] review of the issue is not authorized by
§ 1252(a)(2)(D).” Id. Because Bajraktari fails to raise any
such issues, we lack jurisdiction to review this finding.
We therefore dismiss the petition for review of Bajraktari’s
asylum claim.
Next, Bajraktari disputes the conclusion that he
failed to qualify for the relief of withholding of removal.
“Withholding of removal is available under 8 U.S.C. § 1231(b)(3)
[(2012)] if the alien shows that it is more likely than not that
[his] life or freedom would be threatened in the country of
removal because of [his] race, religion, nationality, membership
in a particular social group, or political opinion.” Gomis,
571 F.3d at 359 (internal quotation marks omitted); see 8 U.S.C.
§ 1231(b)(3). We have reviewed the record and conclude that
substantial evidence supports the agency’s determination that
Bajraktari failed to demonstrate a clear probability of future
persecution on account of a protected ground. 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 Bajraktari did not
demonstrate that it is more likely than not that he would be
tortured if removed to Albania so as to qualify for protection
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under the Convention Against Torture. 8 C.F.R. § 1208.16(c)(2)
(2013).
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.
PETITION DISMISSED IN PART,
DENIED IN PART
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