Zhuo Gao v. Eric Holder, Jr., No. 13-1221 (4th Cir. 2013)
Annotate this Case
Download PDF
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-1221 ZHUO GAO, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Submitted: July 2, 2013 Decided: July 24, 2013 Before MOTZ, KING, and AGEE, Circuit Judges. Petition denied by unpublished per curiam opinion. Gary J. Yerman, New York, New York, for Petitioner. Stuart F. Delery, Acting Assistant Attorney General, David V. Bernal, Assistant Director, Lindsay W. Zimliki, Trial Attorney, 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 Unpublished opinions are not binding precedent in this circuit.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: Zhuo Gao, 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 order finding him removable and denying his applications for asylum, withholding of removal, and withholding under the Convention Against Torture ( CAT ). We deny the petition for review. The Board affirmed the immigration judge s finding that Gao did not establish by clear and convincing evidence that he filed his asylum application within one year of his arrival in the United States. Gao did not The Board also affirmed the finding that establish a clear probability of persecution as required for withholding of removal. 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. Gomis v. Holder, 571 F.3d 353, 358-59 (4th Cir. 2009). 8 U.S.C. which § 1252(a)(2)(D) limits construed as or (2006) eliminates precluding provides judicial review of that review no See Although provision . . . shall be constitutional claims or questions of law, the question of whether an asylum application 2 is untimely or circumstances whether exception the changed applies or a is extraordinary discretionary determination based on factual circumstances, Gomis, 571 F.3d at 358. Accordingly, absent a colorable constitutional claim or question of law, our review of the issue is not authorized by § 1252(a)(2)(D). Gao Id. attempts to raise a constitutional claim by asserting that he was denied due process because his credible testimony process was not violation considered. during In removal order to establish proceedings, Gao a must due show (1) that a defect in the proceeding rendered it fundamentally unfair and (2) that the defect prejudiced the outcome of the case. Anim v. Mukasey, 535 F.3d 243, 256 (4th Cir. 2008). Prejudice results is of shown the if the defect proceedings. was Id. likely (internal to impact quotation the marks omitted). We conclude that Gao s evidence was considered by the immigration merely a judge dispute and that regarding Gao s due the weight process accorded evidence, not a colorable constitutional claim. 3 argument the is record We accordingly lack jurisdiction to review the immigration judge s finding that Gao s asylum petition was untimely filed. * While denial of we Gao s do not have untimely jurisdiction application for to consider asylum, we the retain jurisdiction to review his requests for withholding of removal and withholding under the CAT. 8 C.F.R. §1208.4(a) (2013). Aliens face a heightened burden of proof to qualify for withholding of removal to a particular country under the [Immigration and Nationality Act]. Djadjou v. Holder, 662 F.3d 265, 272 (4th Cir. 2011) (internal quotation marks omitted). They must show a clear probability of persecution on account of a protected ground. If they meet withholding of removal is mandatory. this heightened burden, Id. (internal quotation marks and citation omitted). When the Board adopts the immigration judge s decision and includes decisions. its own reasons Id. at 273. for affirming, we review both We will uphold the Board s decision unless it is manifestly contrary to the law and an abuse of discretion. Id. The standard of review of the agency s findings is narrow and deferential, and factual findings are * Because the untimeliness of Gao s petition for asylum bars asylum in this case, see 8 U.S.C. § 1158(a)(2)(B), we do not review the immigration judge s alternative rationale for denying asylum. 4 affirmed if supported by substantial evidence. Substantial evidence exists to support a finding unless the evidence . . . was such that any reasonable adjudicator compelled to conclude to the contrary. would have been Id. (internal quotation marks omitted). We finding conclude that Gao that did not substantial establish evidence a clear supports the probability of persecution due to a protected ground if he returns to China. Although Gao was detained for seven days, the abuse he suffered and the surrounding circumstances do not compel a finding of a clear probability of persecution. We further conclude that substantial evidence supports the immigration judge s finding that Gao did not show that he was entitled to relief under the CAT. See 8 C.F.R. § 1208.16(c)(2) (2013). Accordingly, dispense with contentions are oral we deny argument adequately the petition because presented in the the for facts review. We and legal materials before this court and argument would not aid the decisional process. PETITION DENIED 5
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
