Feng Chen v. Eric Holder, Jr., No. 13-1294 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-1294 FENG YAN CHEN, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Submitted: August 5, 2013 Decided: August 14, 2013 Before WILKINSON, DUNCAN, and THACKER, Circuit Judges. Petition dismissed in part and denied in part by unpublished per curiam opinion. Feng Yan Chen, Petitioner Pro Se. Stuart F. Delery, Acting Assistant Attorney General, William C. Peachey, Assistant Director, Jem C. Sponzo, 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 Unpublished opinions are not binding precedent in this circuit.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: Feng Yan Chen, 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 withholding judge s of denial removal, and of her protection requests under for the asylum, Convention Against Torture. We first note that the agency denied Chen s request for asylum on the ground that she failed to establish by clear and convincing evidence that she filed her asylum application within one year of her arrival in the United States, and failed to establish either changed or extraordinary circumstances to excuse the late filing of her application. 8 § 1158(a)(2)(B) (2006); 8 C.F.R. § 1208.4(a)(2) (2013). U.S.C. We lack jurisdiction to review this determination pursuant to 8 U.S.C. § 1158(a)(3) (2006), and find that Chen has failed to raise a constitutional claim or question of law that would fall under the exception set forth in 8 U.S.C. § 1252(a)(2)(D) (2006). Gomis v. Holder, 571 F.3d 353, 358-59 (4th Cir. 2009). See Given this jurisdictional bar, we cannot review the underlying merits of her asylum claims. Accordingly, we dismiss this portion of the petition for review. Chen also contends that the agency erred in denying her request for withholding of removal. 2 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 omitted); see 8 U.S.C. § 1231(b)(3) (2006). at 359 (citations 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)), cert. denied, 133 S. Ct. 788 (2012). conclude that Based on our review of the record, we substantial evidence supports the finding that Chen failed to establish that she faces a clear probability of persecution in China based upon her religion. Accordingly, we dismiss the petition for review in part and deny the petition for review in part. We dispense with oral contentions argument adequately because presented in the the facts and materials legal before the court are and argument would not aid the decisional process. PETITION DISMISSED IN PART AND DENIED IN PART Chen has failed to raise any challenges to the denial of her request for protection under the Convention Against Torture. She has therefore waived appellate review of this claim. See Ngarurih v. Ashcroft, 371 F.3d 182, 189 n.7 (4th Cir. 2004). 3
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