                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 13-3495
                        ___________________________

                                   Bin Jing Chen

                             lllllllllllllllllllllPetitioner

                                           v.

            Eric H. Holder, Jr., Attorney General of the United States

                            lllllllllllllllllllllRespondent
                                    ____________

                      Petition for Review of an Order of the
                          Board of Immigration Appeals
                                  ____________

                          Submitted: November 12, 2014
                             Filed: January 15, 2015
                                 ____________

Before MURPHY, MELLOY, and BENTON, Circuit Judges.
                          ____________

MURPHY, Circuit Judge.

      Petitioner Bin Jing Chen, a native and citizen of China, applied for asylum in
this country, withholding of removal, protection under the Convention Against
Torture (CAT), and cancellation of removal. The Immigration Judge (IJ) denied the
requested relief, and the Board of Immigration Appeals dismissed Chen's appeal. She
now petitions for review of the Board's decision. We deny her petition.
                                           I.

       Chen entered the United States without inspection. She applied in January
2008 for a "U" visa, which gives temporary legal status to crime victims. That
application was denied in August 2009. While the U visa application was pending,
Chen filed an affirmative application for asylum on April 2, 2009 based on her fear
that she would be persecuted if she returned to China because she is a Christian. The
asylum officer referred her application to the immigration court after determining that
Chen had filed her application more than one year after entering the United States and
that she had not shown any exception to the one year deadline for filing. Chen was
served with a notice to appear. She conceded removability and sought relief in the
form of asylum, withholding of removal, CAT protection, and cancellation of
removal.

       At a hearing before the IJ, Chen testified that she had entered the United States
through the Canadian border without inspection on December 10, 1997. She had
decided to leave China for the United States because her mother had been arrested
twice for her involvement in a Christian church. That church had met openly until
government officials arrived during a service and arrested the pastors and the church
elders. Chen's mother had also been arrested because she had helped to spread the
church's message. She was imprisoned for a month and told "to stop practicing her
religion because it was an evil cult." Chen initially testified that her mother's first
arrest occurred in 1990, but later stated it was 1997. Chen was unable to name or
describe the branch of Christianity to which her mother belonged.

      After her first arrest, Chen's mother worshiped in a "family church" which was
a small group that met at various homes. Chen helped the family church by typing
information for her mother and arranging their home to host services. In December
1997, Chen was helping her mother prepare the home for a service when someone
warned them that the police were coming. Chen's mother told her to run so she went

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to a relative's house. The police arrested the mother, interrogated her for one hour,
and then released her. Chen wanted to leave China because she was afraid she would
also be arrested. Church members contacted a "snakehead" (smuggler) to help Chen
escape to the United States.

        Chen's testimony about when and how she came to the United States conflicted
with statements in her applications for immigration relief. At the hearing, Chen
testified that she flew from Shanghai to Canada using a British passport, stopped
briefly at the snakehead's home to eat a bowl of noodles, and then went to New York,
arriving on December 10, 1997. Chen's U visa application stated, however, that she
entered the United States on December 15, 1998, and her cancellation of removal
application gave November 19, 1997 as the date she arrived. In her U visa
application, Chen also claimed that she had been held for two weeks in the
snakehead's basement while he threatened to put her in a brothel if her family did not
pay more money. She denied this account at the hearing, where she explained that
her husband had filled out the U visa application and she had just signed it. Chen's
testimony and applications variously represented that she traveled from Canada to
New York by bus, van, small car, and boat.

       Chen testified that she became a Christian when she was baptized in China on
December 25, 1996, and she provided a baptism certificate. In the United States she
attended an English speaking church on Long Island once or twice shortly after her
arrival, but she did not go to church again until 2009. She explained that she was
unaware of any Mandarin speaking churches until that year when a woman named
Qian introduced her to the Minnesota Mandarin Christian Church, and Chen began
attending services there. Chen later began going to services at Twin City Chinese
Church on August 19, 2010 and testified that she continued to attend that church.
Affidavits from fellow church attendees corroborated this testimony.




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       At the hearing Chen argued that her asylum application was timely due to
changed circumstances. She explained that she had mailed "small booklets" about
Christianity to her mother in China in November 2008. Chen stated that she received
these booklets "from the church" or from the woman who had introduced her to the
church in 2009. She also gave some booklets to a friend who was traveling to China
and asked her to take the booklets to Chen's mother. Chen claimed that Chinese
officials confiscated most of the materials she had mailed and went to her family's
home to investigate. There, they told her mother to warn Chen "to stop being
involved with a cult." A letter from Chen's mother said that the officials visited her
home in February 2009. Chen did not explain how she had obtained the booklets
"from the church" in 2008 when she did not know about or attend Minnesota
Mandarin Christian Church until 2009. There was no mention in her asylum
application of sending Christian materials to China or a subsequent visit to her
mother's home by Chinese officials.

      Chen's claims for relief in the form of asylum, withholding of removal, and
CAT protection were based on her asserted fear that she would face persecution on
account of her Christian beliefs if she returned to China. Country conditions
evidence indicated that while some Chinese Christians who participate in
unsanctioned churches have been arrested, imprisoned, and severely abused,
government repression of unsanctioned religious activity is minimal in parts of China,
and churches that meet in homes may be "quietly tolerated by local authorities." U.S.
Dept. of State, China: Profile of Asylum Claims and Country Conditions (2007).
Chen testified that her mother had not been arrested or harmed by the police since
1997.

      Chen also sought cancellation of removal, arguing that her removal would
cause "exceptional and extremely unusual hardship" to her two United States citizen
children because they would go with her. The children have visited China twice.
Each first visited China at the age of three months, traveling with a family friend.

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They stayed with a neighbor near their grandparents until age three or four. The
children also visited China for two months in the summer of 2009. If they were to
reside in China as United States citizens, they could not attend a public school and
Chen would have to pay for a private school. Both of her children need glasses, and
one has amblyopia (lazy eye) and strabismus (crossed or misaligned eyes). The
children's citizenship would disqualify them for public medical insurance, and Chen
would have to pay for private insurance. Chen's application for cancellation of
removal stated that she and her husband, a Chinese citizen without legal status in the
United States, have $375,000 in assets, mostly in real estate.

      The IJ found that the evidence Chen presented in support of her asylum,
withholding of removal, and cancellation of removal applications was not credible,
noting several inconsistencies and observing that Chen's account "ha[d] evolved over
time." The judge also determined that Chen had failed to prove her children would
suffer exceptional hardship if she were removed, thus disqualifying her for
cancellation of removal. The IJ denied the requested relief.

       Chen appealed to the Board of Immigration Appeals. The Board concluded
that the IJ's adverse credibility determination was not clearly erroneous in respect to
Chen's claim of changed circumstances. The record thus supported the IJ's decision
to deny the asylum application as time barred. Assuming that Chen's testimony was
otherwise credible, the Board determined she had not met her burden of proof for the
withholding of removal, CAT relief, and cancellation of removal claims. The Board
then dismissed her appeal. Chen petitions our court for review of the denial of each
form of her requested relief.

                                          II.

      An alien who files an application for asylum must "demonstrate[] by clear and
convincing evidence that the application has been filed within 1 year after the date

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of the alien's arrival in the United States." 8 U.S.C. § 1158(a)(2)(B). If the
application is not filed within this one year deadline, it may still be considered "if the
alien demonstrates to the satisfaction of the Attorney General . . . the existence of
changed circumstances which materially affect the applicant's eligibility for asylum."
8 U.S.C. § 1158(a)(2)(D). Chen conceded that she had not filed her application
within one year of her arrival but argued that the Chinese government's response to
the Christian booklets she sent to China was a qualifying changed circumstance. The
IJ and the Board found this account not credible and concluded that Chen had not
sufficiently demonstrated changed circumstances to excuse the untimeliness of her
application.

       We lack jurisdiction to review a determination that an application for asylum
is untimely, except when the petition seeks "review of constitutional claims or
questions of law." Purwantono v. Gonzales, 498 F.3d 822, 824 (8th Cir. 2007), citing
8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D). To determine whether a petitioner "is raising
a constitutional claim or question of law, over which we have jurisdiction, or
asserting a dispute with the [IJ's and] BIA's factual findings or discretionary
judgments, which are insulated from judicial review," we examine the nature of the
argument in the petition. Id. Here, Chen argues that the adverse credibility finding
was erroneous because it was "not based on a fair gleaning of the record" and because
inconsistencies in her testimony were simply "innocent mistakes." These claims
"amount to a quarrel with the [IJ's and] BIA's discretionary factual determination,"
and we lack jurisdiction to review whether Chen demonstrated changed
circumstances that would provide an exception to the one year filing deadline. See
id.

        Chen petitions for review of the Board's denial of withholding of removal and
relief under CAT. We review the Board's decision "as the final agency action." Diaz-
Perez v. Holder, 750 F.3d 961, 963 (8th Cir. 2014). Applying the substantial
evidence standard, we reverse only if the evidence was "so compelling that no

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reasonable factfinder could fail to find in favor of the petitioner." Quiñonez-Perez
v. Holder, 635 F.3d 342, 344 (8th Cir. 2011).

       The Board determined that even if Chen's testimony were credible, she had
failed to meet her burden of proof to qualify for withholding of removal or CAT
protection. To qualify for withholding of removal an alien must show that her "life
or freedom would be threatened" in the country of removal on account of a protected
ground, such as religion. 8 U.S.C. § 1231(b)(3)(A). For relief under CAT an
applicant must show that "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. § 208.16(c)(2). Here,
country conditions evidence showed that unsanctioned Christian groups are tolerated
in some parts of China. Chen testified that her mother, who continues to practice
Christianity, has not been arrested or harmed by the government since Chen left
China in 1997, over 15 year ago. Chen's children also safely visited China for
extended periods of time, most recently in 2009 after Chen had applied for
immigration relief. Under these circumstances, the Board's determination that Chen
failed to prove she qualified for withholding of removal or CAT relief was supported
by substantial evidence.

      Chen also petitions for review of the denial of cancellation of removal.
Cancellation of removal may be granted to an alien who (1) has been continuously
physically present in the United States for ten years; (2) has been a person of good
moral character; (3) has not been convicted of certain crimes; and (4) has a qualifying
United States citizen relative who would suffer "exceptional and extremely unusual
hardship" if the alien were removed. 8 U.S.C. § 1229b(b). Chen claimed that her two
United States citizen children would suffer such hardship if she were removed to
China. She argues that the Board committed "legal error" because it did not "truly
take into account" what would happen to the children if their father were also
removed from the United States and they had to go to China.



                                         -7-
       We may review "constitutional claims or questions of law" in cancellation of
removal cases, but we lack jurisdiction to review the discretionary determination that
a "petitioner's removal would not result in exceptional and extremely unusual
hardship." Hernandez-Garcia v. Holder, 765 F.3d 815, 816 (8th Cir. 2014) (quotation
omitted), citing 8 U.S.C. § 1252(a)(2)(B)(i), (D). A petitioner may not "create
jurisdiction by cloaking an abuse of discretion argument in constitutional or legal
garb." Id., quoting Garcia-Torres v. Holder, 660 F.3d 333, 338 (8th Cir. 2011).
Chen's argument that the Board insufficiently weighed the impact of her husband's
possible removal challenges the Board's discretionary determination, not its
application of the law. We therefore lack jurisdiction to review the denial of
cancellation of removal in this case.

      Accordingly, we deny the petition for review.
                     ______________________________




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