UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1512
MYNOR MIGUEL BARRERA-GALVEZ,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: December 12, 2014 Decided: January 15, 2015
Before WYNN and DIAZ, Circuit Judges, and DAVIS, Senior Circuit
Judge.
Petition dismissed in part and denied in part by unpublished per
curiam opinion.
Ali Herischi, Nadya Maldonado, HERISCHI & ASSOCIATES, LLC,
Bethesda, Maryland, for Petitioner. Joyce R. Branda, Acting
Assistant Attorney General, John S. Hogan, Senior Litigation
Counsel, Nicole N. Murley, 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Unpublished opinions are not binding precedent in this circuit.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:
Mynor Miguel Barrera-Galvez, a native and citizen of
Guatemala, petitions for review of an order of the Board of
Immigration Appeals (“Board”) dismissing his appeal from the
immigration judge’s (“IJ”) order denying his applications for
asylum, withholding of removal, and withholding under the
Convention Against Torture (“CAT”). We dismiss in part and deny
in part.
The Board agreed with the IJ that Barrera-Galvez’s
asylum application was not timely and that there were no
exceptions to excuse the untimeliness. Under 8 U.S.C.
§ 1158(a)(3) (2012), the 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) (2012) provides that
nothing in § 1252(a)(2)(B), (C), “or in any other provision of
this chapter . . . which limits or eliminates judicial review,
shall be construed as precluding review of constitutional claims
or questions of law,” we have held that the question of whether
an asylum application is untimely or whether the changed or
extraordinary circumstances exception applies “is a
discretionary determination based on factual circumstances.”
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Gomis, 571 F.3d at 358. Because Barrera-Galvez does not raise a
colorable constitutional claim or question of law concerning the
denial of asylum relief, review of this issue is not authorized
by § 1252(a)(2)(D). *
Concerning Barrera-Galvez’s challenges to the denial
of withholding of removal and protection under the CAT, we have
thoroughly reviewed the record, including Barrera-Galvez’s
testimony and the documentary exhibits. We conclude that the
record evidence does not compel a ruling contrary to any of the
administrative findings of fact, see 8 U.S.C. § 1252(b)(4)(B),
and that substantial evidence supports the Board’s decision.
See INS v. Elias–Zacarias, 502 U.S. 478, 481 (1992). We note
that Barrera-Galvez’s proposed particular social group was not
presented to the Board or the IJ. His failure to exhaust
administrative remedies in this regard prevents us from
considering the viability of this particular social group. 8
U.S.C. § 1252(d)(1); see Kporlor v. Holder, 597 F.3d 222, 226-27
(4th Cir. 2010); Asika v. Ashcroft, 362 F.3d 264, 267 n.3 (4th
Cir. 2004). Accordingly, we deny the petition for review as it
concerns the denial of withholding of removal and protection
*
We note that the cases cited by Barrera-Galvez from the
Ninth Circuit for the proposition that we have jurisdiction to
review the Board’s decision on this issue are clearly
distinguishable and non-precedential.
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under the CAT for the reasons stated by the Board. See In re:
Barrera-Galvez (B.I.A. Apr. 29, 2014).
We 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 this court and argument would not aid the decisional
process.
PETITION DISMISSED IN PART
AND DENIED IN PART
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