UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-1735
ZHONG XIN FU,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: February 16, 2012 Decided: March 5, 2012
Before AGEE, WYNN, and DIAZ, Circuit Judges.
Dismissed in part and denied in part by unpublished per curiam
opinion.
Charles Christophe, CHRISTOPHE LAW GROUP, P.C., New York, New
York, for Petitioner. Tony West, Assistant Attorney General,
Anthony W. Norwood, Senior Litigation Counsel, Lisa M. Damiano,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Zhong Xin Fu, a native and citizen of China, petitions
for judicial review of an order of the Board of Immigration
Appeals (“Board”) denying his application for asylum,
withholding of removal, and protection under Article III of the
United Nations Convention Against Torture (“CAT”). We dismiss
the petition in part and deny it in part.
Fu first challenges the determination that his
application for asylum was untimely. As correctly noted by the
Attorney General, pursuant to 8 U.S.C. § 1158(a)(3) (2006), we
lack jurisdiction to review the Board’s decision as to this
issue. Although Fu alleges that the Board mischaracterized
facts relating to his contention that his untimely filing should
be excused based on changed circumstances, thereby committing a
reviewable legal error, we have concluded that the question of
whether an alien timely filed his asylum application or whether
changed or exceptional circumstances applies “is a discretionary
determination based on factual circumstances.” Gomis v. Holder,
571 F.3d 353, 358 (4th Cir. 2009). Fu’s attempt to frame his
quarrel with the Board’s factfinding as a legal question does
not provide this court with a basis for jurisdiction.
Next, Fu argues that he has demonstrated a well-
founded fear that he will be imprisoned because he is a member
of the China Democracy Party and he is entitled to withholding
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of removal.* Fu contends political prisoners are routinely
tortured in China and, accordingly, asserts he also is entitled
to protection under CAT.
To establish eligibility for withholding of removal,
an alien must show a clear probability that, if he was removed
to his native country, his “life or freedom would be threatened”
on a protected ground. 8 U.S.C. § 1231(b)(3)(A) (2006); see
Djadjou v. Holder, 662 F.3d 265, 272 (4th Cir. 2011). A
determination regarding eligibility for withholding of removal
is to be affirmed if supported by substantial evidence on the
record considered as a whole. Niang v. Gonzales, 492 F.3d 505,
510 (4th Cir. 2007). Factual findings made by the Board or the
immigration judge “are conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.”
8 U.S.C. § 1252(b)(4)(B) (2006).
Our review of the evidence of record leads us to
conclude that Fu fails to show that the evidence compels a
contrary result on his eligibility for withholding of removal.
Because Fu has not submitted sufficient evidence that he will be
imprisoned, we also uphold the finding that Fu failed to
*
The Attorney General argues that Fu has waived this
argument by relying on the wrong burden of proof. We disagree
and consider the argument on the merits.
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demonstrate that it is more likely than not that he would be
tortured if removed to China. 8 C.F.R. § 1208.16(c)(2) (2011).
Accordingly, we dismiss the petition for review of
Fu’s asylum claim for lack of jurisdiction and deny the petition
for review of his withholding of removal and CAT claims. 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.
DISMISSED IN PART;
DENIED IN PART
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