Shehu Ali v. Loretta Lynch ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-1034
SHEHU MUSTAFA ALI,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: May 27, 2016 Decided: June 17, 2016
Before DIAZ, FLOYD, and HARRIS, Circuit Judges.
Petition dismissed in part and denied in part by unpublished per
curiam opinion.
Shehu Mustafa Ali, Petitioner Pro Se. Maarja T. Luhtaru, Timothy
Bo Stanton, 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Unpublished opinions are not binding precedent in this circuit.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:
Shehu Mustafa Ali, a native and citizen of Nigeria, petitions
for review of an order of the Board of Immigration Appeals (Board)
dismissing his appeal from the immigration judge’s denial of Ali’s
requests for asylum and withholding of removal. *
On appeal, Ali challenges the agency’s determination that he
failed to establish changed or extraordinary circumstances to
excuse the untimely filing of his asylum application. See 8 U.S.C.
§ 1158(a)(2)(B), (D) (2012). We lack jurisdiction to review this
determination pursuant to 8 U.S.C. § 1158(a)(3) (2012), and find
that Ali has failed to raise a constitutional claim or question of
law that would fall under the exception set forth in 8 U.S.C.
§ 1252(a)(2)(D) (2012). See Mulyani v. Holder, 771 F.3d 190, 196-
97 (4th Cir. 2014); Gomis v. Holder, 571 F.3d 353, 358-59 (4th
Cir. 2009). Given this jurisdictional bar, we cannot review the
underlying merits of Ali’s asylum claims. Accordingly, we dismiss
this portion of the petition for review.
Although we do not have jurisdiction to consider the denial
of Ali’s untimely application for asylum, we retain jurisdiction
to consider the denial of his request for withholding of removal
* Ali does not challenge the agency’s denial of his request
for protection under the Convention Against Torture. He has
therefore waived appellate review of this claim. See Ngarurih v.
Ashcroft, 371 F.3d 182, 189 n.7 (4th Cir. 2004).
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as this claim is not subject to the one-year time limitation. See
8 C.F.R. § 1208.4(a) (2016). “Withholding of removal is available
under 8 U.S.C. § 1231(b)(3) 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 (citations omitted); see 8 U.S.C.
§ 1231(b)(3) (2012). For this relief from removal, an alien “must
show a ‘clear probability of persecution’ on account of a protected
ground.” Djadjou v. Holder, 662 F.3d 265, 272 (4th Cir. 2011)
(quoting INS v. Stevic, 467 U.S. 407, 430 (1984)). Based on our
review of the record, we conclude that substantial evidence
supports the finding that Ali failed to establish either past
persecution or a clear probability of future persecution in Nigeria
on account of a protected ground. See In re Ali (B.I.A. Dec. 8,
2015).
Accordingly, we dismiss the petition for review in part and
deny the petition for review in part. 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
AND DENIED IN PART
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