United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT October 6, 2004
Charles R. Fulbruge III
Clerk
No. 04-60004
Summary Calendar
YAN BING LIN,
Petitioner,
versus
JOHN ASHCROFT, U.S. ATTORNEY GENERAL,
Respondent.
Petition for Review from the Board of
Immigration Appeals
(A77-340-474)
Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
Yan Bing Lin, a native and citizen of China, petitions for
review of the denial by the Board of Immigration Appeals (BIA) of
Lin’s motion for reconsideration of its decision affirming the
Immigration Judge’s (IJ) denial of Lin’s applications for asylum,
withholding of removal, and relief under the Convention Against
Torture (CAT).
This court lacks jurisdiction to review the BIA’s decision
affirming the IJ’s denial of Lin’s applications because Lin did not
file a petition for review within 30 days from that decision. See
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Stone v. I.N.S., 514 U.S. 386, 395 (1995); Navarro-Miranda v.
Ashcroft, 330 F.3d 672, 676 (5th Cir. 2003). Accordingly, Lin’s
petition challenges only the BIA’s denial of his motion for
reconsideration. Our review is limited to whether the BIA abused
its discretion in denying that motion. See Osuchukwu v. I.N.S.,
744 F.2d 1136, 1141 (5th Cir. 1984).
Lin maintains the BIA failed to apply the three-prong analysis
set forth in Matter of A-S-, 21 I. & N. Dec. 1106 (BIA 1998), when
it deferred to the IJ’s credibility finding. The BIA deferred to
the IJ’s credibility determination after examining the
inconsistencies and implausibilities in Lin’s testimony,
applications, and statement to the Immigration Officer. Further,
contrary to Lin’s contention, the BIA specifically cited Matter of
A-S- in support of its determination. It goes without saying that
our court does not substitute its judgment for that of the BIA or
the IJ with respect to the credibility of witnesses and the
ultimate findings based on credibility determinations. See Chun v.
I.N.S., 40 F.3d 76, 78 (5th Cir. 1994). Therefore, Lin’s having
failed to identify a legal or factual error in the BIA’s prior
decision, he has failed to demonstrate that the BIA abused its
discretion by denying his motion for reconsideration.
DENIED
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