                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 16-1482


SHAHZAD AKRAM; KINZA SHAHZAD,

                Petitioners,

          v.

LORETTA E. LYNCH, Attorney General,

                Respondent.



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


Submitted:   November 17, 2016               Decided:   December 15, 2016


Before KING, KEENAN, and HARRIS, Circuit Judges.


Petition dismissed in part and denied in part by unpublished per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


Joshua A. Berman, BLAINE L. GILBERT & ASSOCIATES, PA, Baltimore,
Maryland, for Petitioners.  Benjamin C. Mizer, Principal Deputy
Assistant Attorney General, Erica B. Miles, Senior Litigation
Counsel, Enitan O. Otunla, 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Unpublished opinions are not binding precedent in this circuit.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:

     Shahzad        Akram    (“Akram”)      and     Kinza   Shahzad       (“Shahzad”),

husband and wife, are natives and citizens of Pakistan.                              They

petition for review of an order of the Board of Immigration

Appeals   (Board)       dismissing     their      appeal    from    the    immigration

judge’s   (IJ)      decision      denying    their    applications         for    asylum,

withholding        of   removal,    and     protection      under    the    Convention

Against Torture (CAT).              For the reasons set forth below, we

dismiss in part and deny in part the petition for review.

     On administrative appeal, the Board agreed with the IJ that

Akram’s asylum application was untimely and that the Petitioners

did not establish extraordinary circumstances that would excuse

the late asylum application.              The Board also agreed with the IJ

that, even if the asylum application was timely, Akram failed to

establish past persecution on account of a protected ground or

that he has a well-founded fear of persecution.

     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 has

established        changed   or    extraordinary       circumstances        justifying

waiver of that time limit is not reviewable by any court.                             See

Mulyani   v.       Holder,   771    F.3d     190,    196-97    (4th       Cir.    2014);

Gomis v. Holder, 571 F.3d 353, 358-59 (4th Cir. 2009).                           Although

8   U.S.C.     §    1252(a)(2)(D)      (2012)       provides       that    nothing    in

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§ 1252(a)(2)(B),           (C),       “or    in       any    other      provision            of   [the

Immigration        and   Nationality            Act]    which         limits      or    eliminates

judicial      review,      shall       be   construed            as   precluding         review     of

constitutional claims or questions of law,” we have held that

the question of whether an asylum application is untimely or

whether      the   changed        or    extraordinary             circumstances          exception

applies      “is    a    discretionary            determination            based        on    factual

circumstances.”          Gomis, 571 F.3d at 358 (emphasis omitted); see

Mulyani, 771 F.3d at 197.                   Accordingly, our “power to review an

IJ’s       determination         .     .    .     survive[s]           the        limitation        in

§ 1158(a)(3)        only    if       the    appeal      present[s]           a    constitutional

claim or question of law,”                  Mulyani, 771 F.3d at 197, which the

Petitioners        failed    to        do   here.           Therefore,           we    are    without

jurisdiction to review that finding.                         Insofar as the Petitioners

seek review of the denial of asylum, we dismiss the petition for

review.

       While we do not have jurisdiction to consider the denial of

the    untimely      asylum          application,           we    retain     jurisdiction           to

consider the denial of withholding of removal, as this claim is

not subject to the one-year time limitation. *                                        See 8 C.F.R.

§ 1208.4(a) (2016).


       *
       The Petitioners did not appeal to the Board the denial of
protection under the CAT and do not raise this issue in their
brief. Thus, the issue is abandoned. See United States v. Al-
(Continued)
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     “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 (internal quotation marks omitted); see 8 U.S.C.

§ 1231(b)(3) (2012).            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)).                       “This is a more stringent

standard than that for asylum. . . . [and], while asylum is

discretionary,       if        an    alien        establishes          eligibility          for

withholding of removal, the grant is mandatory.”                                 Gandziami-

Mickhou    v.    Gonzales,       445      F.3d    351,       353-54    (4th    Cir.        2006)

(citations omitted).

     We afford “a high degree of deference” to a determination

that an alien is not eligible for withholding of removal, and

review    administrative         findings        of    fact    under    the    substantial

evidence    standard.           Gomis,      571       F.3d     at     359.       Under      the

substantial      evidence       test,      affirmance          is     mandated       “if     the




Hamdi, 356 F.3d 564, 571 n.8 (4th Cir. 2004) (observing that
contentions not raised in argument section of opening brief are
abandoned).



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evidence       is   not   so   compelling       that   no   reasonable        factfinder

could agree with the [Board]’s factual conclusions.”                          Gandziami-

Mickhou, 445 F.3d at 354 (internal quotation marks omitted).

        We conclude that substantial evidence supports the finding

that the Petitioners failed to establish a nexus between the

incidents      of   persecution      or    their    fear    of   persecution      and   a

protected ground and that the record does not compel a different

result.     Thus, we deny in part the petition for review.

        Accordingly,      we     dismiss   in    part      and   deny    in    part   the

petition for review.           We dispense with oral argument because the

facts    and    legal     contentions      are     adequately     presented      in   the

materials       before    this    court    and     argument      would   not    aid   the

decisional process.

                                                       PETITION DISMISSED IN PART
                                                               AND DENIED IN PART




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