                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 16-2014


YONGZHE TIAN,

                    Petitioner,

             v.

JEFFERSON B. SESSIONS III, Attorney General,

                    Respondent.



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


Submitted: March 21, 2017                                         Decided: March 31, 2017


Before NIEMEYER and KING, Circuit Judges, and DAVIS, Senior Circuit Judge.


Petition dismissed in part and denied in part by unpublished per curiam opinion.


Zhong Yue Zhang, Flushing, New York, for Petitioner. Joyce R. Branda, Acting
Assistant Attorney General, Keith I. McManus, Assistant Director, Scott M. Marconda,
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Unpublished opinions are not binding precedent in this circuit.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:

       Yongzhe Tian, 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 his appeal

from the immigration judge’s decision finding that his asylum application was untimely

and that he did not meet his burden of showing that he was eligible for withholding of

removal or 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.

       Under 8 U.S.C. § 1158(a)(3) (2012), the agency’s decision regarding whether an

alien has complied with the one-year time limit for filing an application for asylum or

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 provisions under the Immigration and Nationality

Act which limit or eliminate judicial review shall not 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; 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.

Because Tian does not raise a constitutional claim or a question of law concerning the



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finding that his asylum application was untimely, we dismiss in part the petition for

review.

       Concerning Tian’s challenges to the denial of withholding of removal and

protection under the CAT, we have thoroughly reviewed the record, including the

transcript of Tian’s merits hearings and all supporting evidence. We conclude that the

record evidence does not compel a ruling contrary to any of the agency’s factual findings,

see 8 U.S.C. § 1252(b)(4)(B) (2012), and that substantial evidence supports the Board’s

decision, INS v. Elias–Zacarias, 502 U.S. 478, 481 (1992). Accordingly, we deny in part

the petition for review.

       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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