Toshev v. Holder

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-1462
ASRORBEK TOSHEV,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: December 15, 2010 Decided: January 13, 2011
Before DUNCAN, DAVIS, and KEENAN, Circuit Judges.
Petition dismissed in part and denied in part by unpublished per
curiam opinion.
Richard W. Moore, Jr., LAW OFFICES OF RICHARD W. MOORE, PA,
Towson, Maryland, for Petitioner. Tony West, Assistant Attorney
General, Blair T. O’Connor, Assistant Director, Elizabeth D.
Kurlan, 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Unpublished opinions are not binding precedent in this circuit.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:
Asrorbek Toshev, a native and citizen of Uzbekistan,
petitions for review of an order of the Board of Immigration
Appeals (“Board”) dismissing his appeal from the immigration
judge’s denial of his requests for asylum, withholding of
removal, and protection under the Convention Against Torture.
In his brief on appeal, Toshev argues that he
established extraordinary circumstances to excuse his failure to
file his asylum application within one year of his arrival in
the United States. We lack jurisdiction to review this
determination pursuant to 8 U.S.C. § 1158(a)(3) (2006), and find
that Toshev has failed to raise a constitutional claim or
colorable question of law that would fall under the exception
set forth in 8 U.S.C. § 1252(a)(2)(D) (2006). See Gomis v.
Holder, 571 F.3d 353, 358-59 (4th Cir. 2009), cert. denied, 130
S. Ct. 1048 (2010). Given this jurisdictional bar, we cannot
review the underlying merits of Toshev’s asylum claims.
Accordingly, we dismiss this portion of his petition for review.
Toshev also contends that the Board and the
immigration judge erred in denying his request for withholding
of removal. “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 h[is] life or freedom would be threatened in the country of
removal because of h[is] race, religion, nationality, membership
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in a particular social group, or political opinion.” Gomis, 571
F.3d at 359 (citations omitted); see 8 U.S.C. § 1231(b)(3)
(2006). Based on our review of the record, we conclude that
substantial evidence supports the denial of Toshev’s request for
withholding of removal.
Finally, Toshev challenges the denial of his request
for protection under the Convention Against Torture. To qualify
for such protection, a petitioner bears the burden of proof of
showing “it is more likely than not that he or she would be
tortured if removed to the proposed country of removal.” 8
C.F.R. § 1208.16(c)(2) (2010). The applicant need not prove the
torture would be inflicted on account of a protected ground.
Dankam v. Gonzales, 495 F.3d 113, 116 (4th Cir. 2007).
Before the immigration judge, Toshev merely assumed,
without support, that the government could become aware of his
anti-government sentiment and Internet activity and subject him
to possible imprisonment and torture. Because Toshev’s fear is
too speculative to warrant relief, see Savchuck v. Mukasey, 518
F.3d 119, 123-24 (2d Cir. 2008), we conclude that substantial
evidence supports the denial of his request for protection under
the Convention Against Torture.
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
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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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