Zhuo Gao v. Eric Holder, Jr.

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-1221

ZHUO GAO,

Petitioner,

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Petition denied by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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