UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1506
XINYOU LIN,
Petitioner,
v.
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Petition dismissed in part and denied in part by unpublished per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Unpublished opinions are not binding precedent in this circuit.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
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