Zhuo Gao v. Eric Holder, Jr.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1221
ZHUO GAO,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: July 2, 2013 Decided: July 24, 2013
Before MOTZ, KING, and AGEE, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Gary J. Yerman, New York, New York, for Petitioner. Stuart F.
Delery, Acting Assistant Attorney General, David V. Bernal,
Assistant Director, Lindsay W. Zimliki, Trial Attorney, 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Unpublished opinions are not binding precedent in this circuit.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:
Zhuo Gao, a native and citizen of the People’s
Republic of China, petitions for review of an order of the Board
of Immigration Appeals (“Board”) dismissing his appeal from the
immigration judge’s order finding him removable and denying his
applications for asylum, withholding of removal, and withholding
under the Convention Against Torture (“CAT”). We deny the
petition for review.
The Board affirmed the immigration judge’s finding
that Gao did not establish by clear and convincing evidence that
he filed his asylum application within one year of his arrival
in the United States. The Board also affirmed the finding that
Gao did not establish a clear probability of persecution as
required for withholding of removal.
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
8 U.S.C. § 1252(a)(2)(D) (2006) provides that no provision
“which limits or eliminates judicial review . . . shall be
construed as precluding review of constitutional claims or
questions of law,” the question of whether an asylum application
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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 colorable constitutional claim
or question of law, our review of the issue is not authorized by
§ 1252(a)(2)(D).” Id.
Gao attempts to raise a constitutional claim by
asserting that he was denied due process because his credible
testimony was not considered. In order to establish a due
process violation during removal proceedings, Gao must show
“(1) that a defect in the proceeding rendered it fundamentally
unfair and (2) that the defect prejudiced the outcome of the
case.” Anim v. Mukasey, 535 F.3d 243, 256 (4th Cir. 2008).
Prejudice is shown if the defect “was likely to impact the
results of the proceedings.” Id. (internal quotation marks
omitted).
We conclude that Gao’s evidence was considered by the
immigration judge and that Gao’s “due process” argument is
merely a dispute regarding the weight accorded the record
evidence, not a colorable constitutional claim. We accordingly
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lack jurisdiction to review the immigration judge’s finding that
Gao’s asylum petition was untimely filed. *
While we do not have jurisdiction to consider the
denial of Gao’s untimely application for asylum, we retain
jurisdiction to review his requests for withholding of removal
and withholding under the CAT. 8 C.F.R. §1208.4(a) (2013).
“Aliens face a heightened burden of proof to qualify
for withholding of removal to a particular country under the
[Immigration and Nationality Act].” Djadjou v. Holder, 662 F.3d
265, 272 (4th Cir. 2011) (internal quotation marks omitted).
“They must show a clear probability of persecution on account of
a protected ground. If they meet this heightened burden,
withholding of removal is mandatory.” Id. (internal quotation
marks and citation omitted).
When the Board adopts the immigration judge’s decision
and includes its own reasons for affirming, we review both
decisions. Id. at 273. We will uphold the Board’s decision
unless it is manifestly contrary to the law and an abuse of
discretion. Id. The standard of review of the agency’s
findings is narrow and deferential, and factual findings are
*
Because the untimeliness of Gao’s petition for asylum bars
asylum in this case, see 8 U.S.C. § 1158(a)(2)(B), we do not
review the immigration judge’s alternative rationale for denying
asylum.
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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.” Id. (internal quotation
marks omitted).
We conclude that substantial evidence supports the
finding that Gao did not establish a clear probability of
persecution due to a protected ground if he returns to China.
Although Gao was detained for seven days, the abuse he suffered
and the surrounding circumstances do not compel a finding of a
clear probability of persecution.
We further conclude that substantial evidence supports
the immigration judge’s finding that Gao did not show that he
was entitled to relief under the CAT. See 8 C.F.R.
§ 1208.16(c)(2) (2013).
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
this court and argument would not aid the decisional process.
PETITION DENIED
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