Dung Nguyen v. Eric Holder, Jr. ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1148
DUNG T. NGUYEN,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: July 10, 2012 Decided: July 31, 2012
Before SHEDD, AGEE, and DIAZ, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Hoang Nguyen, Duluth, Georgia, for Petitioner. Stuart F.
Delery, Acting Assistant Attorney General, Carl H. McIntyre,
Assistant Director, Susan K. Houser, 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Unpublished opinions are not binding precedent in this circuit.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:
Dung T. Nguyen, a native and citizen of Vietnam,
petitions for review of an order of the Board of Immigration
Appeals (“Board”) dismissing his appeal from the immigration
judge’s order denying his applications for asylum, withholding
from removal and withholding under the Convention Against
Torture (“CAT”). We deny the petition for review.
Nguyen’s asylum application was denied because it was
untimely and he did not show extraordinary or changed
circumstances that would warrant the late filing. Under 8
U.S.C. § 1158(a)(3) (2006), 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. See Gomis v. Holder,
571 F.3d 353, 358-59 (4th Cir. 2009). Although § 1252(a)(2)(D)
provides that nothing in § 1252(a)(2)(B), (C), “or in any other
provision of this Act . . . 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
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colorable constitutional claim or question of law, [the court’s]
review of the issue is not authorized by § 1252(a)(2)(D).” Id.
Nguyen does not raise a constitutional claim or legal issue
regarding the finding that his asylum application was untimely.
Thus, we are without jurisdiction to review the determination.
While this court does not have jurisdiction to
consider the denial of Nguyen’s untimely application for asylum,
we retain jurisdiction to consider the denial of his request for
withholding of removal as this claim is not subject to the one-
year limitation bar. * See 8 C.F.R. § 1208.4(a) (2012). The
current state of the law regarding this court’s review of a
final order denying withholding of removal was recently
summarized in Djadjou v. Holder, 662 F.3d 265, 272-74 (4th Cir.
2011). In order to qualify for withholding of removal, the
alien must show a clear probability of persecution on account of
a protected ground, such as political opinion or religious
belief. See 8 U.S.C. § 1231(b)(3)(A) (2006); 8 C.F.R.
*
Nguyen does not challenge the denial of relief under the
CAT. Accordingly, this court need not review this
determination. See Fed. R. App. P. 28(a)(9)(A) (“[T]he argument
. . . must contain . . . appellant’s contentions and the reasons
for them, with citations to the authorities and parts of the
record on which the appellant relies.”); Edwards v. City of
Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir. 1999) (“Failure to
comply with the specific dictates of [Rule 28] with respect to a
particular claim triggers abandonment of that claim on
appeal.”).
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§ 1208.16(b)(1)(i) (2012). A showing of past persecution on
account of a protected ground creates a rebuttable presumption
that the threat would recur upon removal. 8 C.F.R.
§ 1208.16(b)(1)(i). If the alien fails to show past
persecution, he can establish a well-founded fear of persecution
by showing that it is more likely than not that he will be
persecuted on account of a protected ground if removed to his
country. Id., § 1208.16(b)(1)(iii). If the alien meets his
burden, withholding of removal is mandatory.
When the Board adopts that immigration judge’s
decision and includes its own reasons for affirming, this court
reviews both decisions and will uphold the Board’s decision
unless it is manifestly contrary to the law and an abuse of
discretion. The standard of review of the agency’s findings is
narrow and deferential. Factual findings are affirmed if
supported by substantial evidence. Substantial evidence exists
to support a finding unless the evidence was such that any
reasonable adjudicator would have been compelled to conclude to
the contrary. See Djadjou, 662 F.3d at 272-74 (case citations
omitted).
We conclude substantial evidence supports the finding
that Nguyen did not establish past persecution or a well-founded
fear of persecution. Nguyen’s testimony simply lacked detail
regarding his arrest and detention and the record does not
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compel the conclusion that he suffered past persecution.
Similarly, the record does not compel the conclusion that there
is an objectively reasonable well-founded fear of persecution
merely because Nguyen is a practicing Buddhist who has
participated in one demonstration that drew attention to the
need for religious freedom.
Accordingly, we deny 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 DENIED
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