Meiqiong Xu v. Holder

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 08-1064

MEIQIONG XU,

Petitioner,

ERIC H. HOLDER, JR.,

Respondent.

On Petition for Review of an Order of the Board of Immigration
Appeals.

Submitted: February 27, 2009 Decided: March 23, 2009

Before WILKINSON, MICHAEL, and TRAXLER, Circuit Judges.

Petition dismissed in part and denied in part by unpublished per
curiam opinion.

Jason A. Nielson, LAW OFFICES OF JOE ZHENGHONG ZHOU AND
ASSOCIATES, PLLC, Flushing, New York, for Petitioner. Gregory G.
Katsas, Assistant Attorney General, Leslie M. McKay, Assistant
Director, Kristin K. Edison, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Meiqiong Xu, a native and citizen of China, petitions

for review of an order of the Board of Immigration Appeals

(Board) adopting and affirming the Immigration Judge’s (IJ)

decision denying her applications for relief from removal. Xu

first challenges the Board’s finding that she waived appeal of

the IJ’s finding that she filed an untimely asylum application

and no exceptions applied. We find it unnecessary to address

this claim because the Board found alternatively that Xu failed

to show changed or extraordinary circumstances justifying the

untimely filing of her asylum application, and we lack

jurisdiction to review this determination. See 8 U.S.C.

§ 1158(a)(3) (2006); Niang v. Gonzales, 492 F.3d 505, 510 n.5

(4th Cir. 2007); Almuhtaseb v. Gonzales, 453 F.3d 743, 747-48

(6th Cir. 2006) (collecting cases). Given that the Board

reviewed the finding at issue, we reject Xu’s assertion that she

was denied due process when the Board found that she waived

appeal.

Next, Xu challenges the finding below that she failed

to qualify for withholding of removal. “To qualify for

withholding of removal, a petitioner must show that he faces a

clear probability of persecution because of his race, religion,

nationality, membership in a particular social group, or

political opinion.” Rusu v. INS, 296 F.3d 316, 324 n.13 (4th

2
Cir. 2002) (citing INS v. Stevic, 467 U.S. 407, 430 (1984)).

Having conducted our review, we conclude that substantial

evidence supports the finding that Xu did not establish

eligibility for withholding of removal. We likewise uphold the

finding below that Xu failed to demonstrate that it is more

likely than not that she would be tortured if removed to China.

8 C.F.R. § 1208.16(c)(2) (2008). Finally, we decline to

consider evidence in the administrative record that was not the

basis for the Board’s decision currently before us, see 8 U.S.C.

§ 1252(b)(4)(A) (2006), and deny Xu’s motion for abeyance

pending a ruling on her motion to reopen as moot.

We thus 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 the court and argument would not aid the decisional

process.

PETITION DISMISSED IN PART
AND DENIED IN PART