UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1063
XIAOLAN PAN,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: September 27, 2012 Decided: October 4, 2012
Before AGEE, KEENAN, and WYNN, Circuit Judges.
Petition dismissed in part and denied in part by unpublished per
curiam opinion.
Gang Zhou, New York, New York, for Petitioner. Stuart F.
Delery, Acting Assistant Attorney General, William C. Peachey,
Assistant Director, Daniel E. Goldman, Senior Litigation
Counsel, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Xiaolan Pan, 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 her appeal from the
Immigration Judge’s order denying her applications for asylum
and withholding of removal. We dismiss in part and deny in part
the petition for review.
Pan first challenges the finding below that she failed
to timely file her asylum application. 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 nothing in § 1252(a)(2)(B), (C), “or in any
other provision of this Act . . . which limits or eliminates
judicial review, shall be construed as precluding review of
constitutional claims or questions of law,” this court has 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, [the Court’s]
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review of the issue is not authorized by § 1252(a)(2)(D).” Id.
Because Pan fails to raise any such issues, we lack jurisdiction
to review this finding.
Next, Pan disputes the conclusion that she failed to
qualify for the relief of withholding of removal. “Withholding
of removal is available under 8 U.S.C. § 1231(b)(3) if the alien
shows that it is more likely than not that her life or freedom
would be threatened in the country of removal because of her
race, religion, nationality, membership in a particular social
group, or political opinion.” Gomis, 571 F.3d at 359 (citations
omitted); see 8 U.S.C. § 1231(b)(3) (2006). Based on our review
of the record, we conclude that substantial evidence supports
the agency’s adverse credibility determination as well as its
finding that Pan failed to demonstrate past persecution or a
clear probability of future persecution. Because the evidence
does not compel us to conclude to the contrary, we uphold the
denial of relief. See Djadjou v. Holder, 662 F.3d 265, 273 (4th
Cir. 2011), petition for cert. filed (Aug. 6, 2012).
We accordingly 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
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materials before the court and argument would not aid the
decisional process.
PETITION DISMISSED IN PART
AND DENIED IN PART
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