Xinyou Lin v. Eric Holder, Jr.

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-1506

XINYOU LIN,

Petitioner,

ERIC H. HOLDER, JR., Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration
Appeals.

Submitted: October 16, 2012 Decided: October 22, 2012

Before MOTZ, SHEDD, and DUNCAN, Circuit Judges.

Petition dismissed in part and denied in part by unpublished per
curiam opinion.

Troy Nader Moslemi, ALL PEOPLES LAW CENTER, P.A., New York, New
York, for Petitioner. Stuart F. Delery, Acting Assistant
Attorney General, Jennifer L. Lightbody, Senior Litigation
Counsel, Matthew A. Connelly, 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Unpublished opinions are not binding precedent in this circuit.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:

Xinyou Lin, 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 his appeal from the

immigration judge’s denial of his requests for asylum,

withholding of removal, and protection under the Convention

Against Torture.

We first note that the agency denied Lin’s request for

asylum on the ground that he failed to establish by clear and

convincing evidence that he filed his asylum application within

one year of his arrival in the United States, and failed to

establish either changed or extraordinary circumstances to

excuse the late filing of his application. See 8 U.S.C.

§ 1158(a)(2)(B) (2006); 8 C.F.R. § 1208.4(a)(2) (2012). We lack

jurisdiction to review this determination pursuant to 8 U.S.C.

§ 1158(a)(3) (2006), and find that Lin has failed to raise a

colorable constitutional claim or question of law that would

fall under the exception set forth in 8 U.S.C. § 1252(a)(2)(D)

(2006). * See Gomis v. Holder, 571 F.3d 353, 358-59 (4th Cir.

*
We have thoroughly reviewed Lin’s claim that the
immigration judge deprived him of due process by denying his
motion for a continuance. Because Lin fails to show the
requisite prejudice to establish a due process violation, see
Anim v. Mukasey, 535 F.3d 243, 256 (4th Cir. 2008), we find that
he has failed to raise a colorable constitutional claim for
purposes of 8 U.S.C. § 1252(a)(2)(D). Additionally, we uphold
(Continued)
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2009). Given this jurisdictional bar, we cannot review the

underlying merits of his asylum claims. Accordingly, we dismiss

this portion of the petition for review.

Lin also contends that the agency erred in denying his

request for 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 h[is] life or freedom would be

threatened in the country of removal because of h[is] 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). An alien “must show

a ‘clear probability of persecution’ on account of a protected

ground.” Djadjou v. Holder, 662 F.3d 265, 272 (4th Cir. 2011)

(quoting INS v. Stevic, 467 U.S. 407, 430 (1984)), petition for

cert. filed, 81 U.S.L.W. 3075 (Aug. 6, 2012). Based on our

review of the record, we conclude that substantial evidence

supports the finding that Lin failed to establish that he faces

a clear probability of persecution in China based upon his

religion.

the immigration judge’s denial of Lin’s motion for a
continuance, finding no abuse of discretion. See Lendo v.
Gonzales, 493 F.3d 439, 441 (4th Cir. 2007) (setting forth
standard of review).

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Finally, Lin challenges the denial of his request for

protection under the Convention Against Torture. To qualify for

such protection, a petitioner bears the burden of proof of

showing “it is more likely than not that he or she would be

tortured if removed to the proposed country of removal.” 8

C.F.R. § 1208.16(c)(2) (2012). Based on our review of the

record, we conclude that substantial evidence supports the

denial of Lin’s request for relief. See Dankam v. Gonzales, 495

F.3d 113, 124 (4th Cir. 2007) (setting forth standard of

review). Lin simply failed to demonstrate that it is more

likely than not that he will be tortured based on his religious

practices or for violating China’s illegal exit laws.

Accordingly, we dismiss the petition for review in

part and deny the petition for review in part. 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.

PETITION DISMISSED IN PART
AND DENIED IN PART