UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-2090
DUNG DUC NGUYEN,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: February 9, 2015 Decided: February 19, 2015
Before MOTZ, SHEDD, and THACKER, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Dung Duc Nguyen, Petitioner Pro Se. Lori B. Warlick, 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Unpublished opinions are not binding precedent in this circuit.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:
Dung Duc Nguyen, a native and citizen of Vietnam,
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 protection under the Convention
Against Torture (“CAT”). Nguyen challenges the findings that:
(1) the asylum application was not timely filed and he did not
show that an exception should be made in his circumstance;
(2) there were serious reasons to believe he committed a serious
nonpolitical crime in Vietnam; (3) his testimony was not
credible; and (4) he did not meet his burden of proof showing
that he should be granted deferral of removal under the CAT. We
deny the petition for review.
Under 8 U.S.C. § 1158(a)(3) (2012), 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) (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
2
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.”
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. Because Nguyen does
not raise a constitutional claim or a question of law, we are
without jurisdiction to consider the finding that Nguyen’s
asylum application was untimely and he did not establish changed
or extraordinary circumstances justifying tolling of the one-
year time limit.
We conclude that substantial evidence supports the
finding that “there are serious reasons to believe that [Nguyen]
committed a serious nonpolitical crime outside the United States
before [he] arrived in the United States.” 8 U.S.C.
§ 1231(b)(3)(B)(iii) (2012); see also Djadjou v. Holder, 662
F.3d 265, 273 (4th Cir. 2011) (factual findings are reviewed for
substantial evidence). Accordingly, Nguyen is not eligible for
withholding from removal or protection under the CAT. See 8
U.S.C. § 1231(b)(3)(B)(iii); 8 C.F.R. § 1208.16(d)(2) (2014).
However, while Nguyen remains eligible for deferral of removal
under the CAT, we also conclude that substantial evidence
supports the adverse credibility finding and the finding that
3
Nguyen failed to show that it was more likely than not that he
will be tortured if he returns to Vietnam. See 8 C.F.R.
§ 1208.16(c)(2) (2014).
Accordingly, while we grant Nguyen’s motion for leave
to proceed in forma pauperis, we deny the petition for review,
and deny Nguyen’s motion for appointment of counsel. 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
4