                                                            NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 11-2660
                                     ___________

                                  GUANGLIE CUI,
                                            Petitioner

                                           v.

                ATTORNEY GENERAL OF THE UNITED STATES,
                                         Respondent
                   ____________________________________

                      On Petition for Review of an Order of the
                           Board of Immigration Appeals
                            (Agency No. A089-193-568)
                    Immigration Judge: Honorable Annie S. Garcy
                     ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 December 14, 2011

            Before: AMBRO, ALDISERT and NYGAARD, Circuit Judges

                          (Opinion filed: December 15, 2011)
                                     ___________

                                      OPINION
                                     ___________

PER CURIAM

      Guangile Cui seeks review of a decision of the Board of Immigration Appeals

(“BIA”) denying his application for asylum, withholding of removal, and protection

                                           1
under the Convention Against Torture (“CAT”). For the following reasons, we will deny

his petition for review.

                                             I.

       Cui, a citizen of China, arrived in the United States in June 1998. Ten years later,

he filed an application for asylum, withholding of removal, and protection under the CAT

based on his fear of persecution by the Chinese government as a result of assistance he

provided to North Korean refugees. The application was transferred to an immigration

court and Cui was placed in removal proceedings on the basis that he was present in the

United States without authorization, a charge that he conceded.

       At a hearing before an Immigration Judge (“IJ”), Cui testified that he helped North

Korean refugees at the request of his wife’s pastor, who headed an underground church.

Between January and April 1998, Cui, an employee of a government-owned bus

company, used his employer’s bus on three occasions to smuggle 10 North Korean

refugees into China. On May 2, 1998, police officers came to his home. Cui was not

there, so the officers told his wife to have him “come down to the police station [so he

could] reveal what [he had] done and then go through investigations.” (R. 129.) Cui fled

to a friend’s house and left China shortly thereafter. In the meantime, police returned to

Cui’s home on five or six additional occasions.

       Cui arrived in the United States in June 1998, but did not apply for asylum

because his wife was concerned that he would not be able to return to China and that their

son, who remained in China, would be affected by such an application. Cui was also
                                             2
hoping that policies in China would change so that he could return. In April 2008, Cui

learned from his wife that the pastor of her church and 15 church members were arrested,

and that the police confiscated materials from the church. Cui thereafter applied for

asylum because he feared that police would reinvestigate his case based on his

assumption that the arrests were motivated by assistance the church provided to North

Korean refugees. (R. 150.)

       The IJ found that Cui testified credibly, but denied his asylum application as

untimely, rejected his remaining claims, and ordered Cui removed to China. The BIA

agreed that Cui’s asylum application was untimely and that he failed to establish changed

circumstances that would excuse the late filing. The BIA also concluded that Cui failed

to establish eligibility for asylum and rejected his withholding of removal and CAT

claims. Cui filed a timely petition for review.

                                              II.

       Asylum applications must be filed within a year of arriving in the United States,

although the BIA may consider late-filed applications when an alien “demonstrates to the

satisfaction of the Attorney General either the existence of changed circumstances which

materially affect . . . eligibility for asylum or extraordinary circumstances relating to the

delay in filing an application.” 8 U.S.C. § 1158(a)(2)(D). Cui contends that the BIA

erroneously concluded that his undisputed testimony did not establish changed

circumstances, and that this issue constitutes a question of law that falls within our

jurisdiction under the REAL ID Act. See 8 U.S.C. § 1252(a)(2)(D). To the contrary, we
                                              3
have held that the Attorney General’s assessment of whether circumstances justify tolling

is a discretionary decision outside the scope of our review. Sukwanputra v. Gonzales,

434 F.3d 627, 635 (3d Cir. 2006); see also 8 U.S.C. § 1158(a)(3). Accordingly, we lack

jurisdiction to review Cui’s challenge. 1 See Sukwanputra, 434 F.3d at 635 (no

jurisdiction over petitioner’s “claim that she met her burden of demonstrating changed

circumstances materially affecting asylum eligibility or extraordinary circumstances

relating to the delay”); see also Jarbough v. Att’y Gen., 483 F.3d 184, 189 (3d Cir. 2007)

(“[C]hallenges to the BIA’s extraordinary or changed circumstances determinations do

not constitute ‘questions of law’ within the meaning of § 1252(a)(2)(D).”)

       Cui also appears to argue that the agency held him to an incorrect standard of

proof in assessing whether he established changed circumstances. Although that

contention arguably raises a question of law within the scope of our jurisdiction, we do

not believe that Cui has established a colorable legal claim because his argument is based

solely on a United States Citizenship and Immigrations Services workbook that does not

have the force of law. See Sukwanputra, 434 F.3d at 634-35. Furthermore, a review of

his brief reveals that the claim is indistinguishable from his argument that the BIA erred

as a matter of law in concluding that he did not establish changed circumstances, which

we may not address for lack of jurisdiction. 2 See Jarbough, 483 F.3d at 190 (we look to


1
  The cases from the Ninth Circuit relied on by Cui that have held to the contrary are not
binding on this Court. See Ramadan v. Gonzales, 479 F.3d 646, 655-56 (9th Cir. 2007);
see also Dhital v. Mukasey, 532 F.3d 1044, 1049 (9th Cir. 2008).
2
  As the BIA’s untimeliness determination supports its rejection of Cui’s asylum claim,
                                             4
the substance, rather than the labeling, of a party’s claim in determining whether

jurisdiction exists).

       Although we retain jurisdiction to consider Cui’s withholding of removal and

CAT claims, see 8 U.S.C. § 1252(a)(1), Cui failed to present any arguments concerning

them. Accordingly, we agree with the Government that those claims are waived. See Li

v. Att’y Gen., 633 F.3d 136, 140 n.3 (3d Cir. 2011). Regardless, the record does not

compel the conclusion that it is more likely than not that Cui would be persecuted or

tortured upon return to China. See id. at 145-47; see also INS v. Elias-Zacarias, 502 U.S.

478, 483-84 (1992) (an alien seeking reversal of BIA’s determination “must show that the

evidence he presented was so compelling that no reasonable factfinder could fail to find

the requisite fear of persecution”).

       For the foregoing reasons, we will deny Cui’s petition for review.




we need not address his challenge to the BIA’s conclusion that he failed to establish
eligibility for asylum.
                                            5
