Bashkim Bajraktari v. Eric Holder, Jr., No. 13-1562 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-1562 BASHKIM BAJRAKTARI, Petitioner, v. ERIC H. HOLDER, JR., Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Submitted: November 18, 2013 Decided: December 5, 2013 Before NIEMEYER, DAVIS, and FLOYD, Circuit Judges. Petition dismissed in part, denied in part by unpublished per curiam opinion. Andrew P. Johnson, LAW OFFICES OF ANDREW P. JOHNSON, New York, New York, for Petitioner. Stuart F. Delery, Assistant Attorney General, Melissa Neiman-Kelting, Senior Litigation Counsel, Anthony J. Messuri, 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 Unpublished opinions are not binding precedent in this circuit.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: Bashkim Bajraktari, a native and citizen of Albania, petitions for review of an order of the Board of Immigration Appeals dismissing his appeal from the Immigration Judge s order denying his applications for asylum, withholding of removal, and protection under the Convention Against Torture. We dismiss in part and deny in part the petition for review. Bajraktari challenges the finding below that no exception applied to excuse the untimely filing of his asylum application. Under 8 U.S.C. § 1158(a)(3) (2012), 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 waiver of changed that or time extraordinary limit is not circumstances reviewable by justifying any Gomis v. Holder, 571 F.3d 353, 358-59 (4th Cir. 2009). 8 U.S.C. § 1252(a)(2)(D) § 1252(a)(2)(B), (C), or (2012) in any provides other that court. Although nothing provision of in this chapter . . . 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 discretionary circumstances determination based exception on factual Gomis, 571 F.3d at 358 (emphasis omitted). 2 applies is a circumstances. Accordingly, absent a colorable court s] constitutional review of § 1252(a)(2)(D). such issues, We therefore the Id. we lack dismiss claim or issue question is of not law, [the authorized by Because Bajraktari fails to raise any jurisdiction the petition to for review review this of finding. Bajraktari s asylum claim. Next, failed to Bajraktari qualify for the disputes relief of the conclusion withholding of that he removal. Withholding of removal is available under 8 U.S.C. § 1231(b)(3) [(2012)] if the alien shows that it is more likely than not that [his] life or freedom would be threatened in the country of removal because of [his] race, religion, nationality, membership in a particular social group, or political opinion. Gomis, 571 F.3d at 359 (internal quotation marks omitted); see 8 U.S.C. § 1231(b)(3). substantial We have reviewed the record and conclude that evidence supports the agency s determination that Bajraktari failed to demonstrate a clear probability of future persecution on account of a protected ground. 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), cert. denied, 133 S. Ct. 788 (2012). Finally, we uphold the finding below that Bajraktari did not demonstrate that it is more likely than not that he would be tortured if removed to Albania so as to qualify for protection 3 under the Convention Against Torture. 8 C.F.R. § 1208.16(c)(2) (2013). We accordingly dismiss in part and deny in part the petition for review. facts and materials legal before We dispense with oral argument because the contentions are adequately this and argument court presented would not in the aid the decisional process. PETITION DISMISSED IN PART, DENIED IN PART 4