                                UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                No. 08-1064


MEIQIONG XU,

                  Petitioner,

          v.

ERIC H. HOLDER, JR.,

                  Respondent.



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


Submitted:     February 27, 2009              Decided:   March 23, 2009


Before WILKINSON, MICHAEL, and TRAXLER, Circuit Judges.


Petition dismissed in part and denied in part by unpublished per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


Jason A. Nielson, LAW OFFICES OF JOE ZHENGHONG ZHOU AND
ASSOCIATES, PLLC, Flushing, New York, for Petitioner. Gregory G.
Katsas, Assistant Attorney General, Leslie M. McKay, Assistant
Director, Kristin K. Edison, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               Meiqiong Xu, a native and citizen of China, petitions

for    review    of   an    order      of    the      Board   of   Immigration          Appeals

(Board)    adopting        and   affirming            the   Immigration      Judge’s        (IJ)

decision denying her applications for relief from removal.                                   Xu

first challenges the Board’s finding that she waived appeal of

the IJ’s finding that she filed an untimely asylum application

and no exceptions applied.                   We find it unnecessary to address

this claim because the Board found alternatively that Xu failed

to show changed or extraordinary circumstances justifying the

untimely       filing      of    her        asylum      application,         and    we      lack

jurisdiction       to      review      this       determination.          See       8    U.S.C.

§ 1158(a)(3) (2006); Niang v. Gonzales, 492 F.3d 505, 510 n.5

(4th Cir. 2007); Almuhtaseb v. Gonzales, 453 F.3d 743, 747-48

(6th    Cir.     2006)     (collecting         cases).         Given    that       the    Board

reviewed the finding at issue, we reject Xu’s assertion that she

was denied due process when the Board found that she waived

appeal.

               Next, Xu challenges the finding below that she failed

to     qualify    for      withholding        of       removal.        “To    qualify        for

withholding of removal, a petitioner must show that he faces a

clear probability of persecution because of his race, religion,

nationality,       membership          in     a       particular    social         group,     or

political opinion.” Rusu v. INS, 296 F.3d 316, 324 n.13 (4th

                                                  2
Cir. 2002) (citing INS v. Stevic, 467 U.S. 407, 430 (1984)).

Having     conducted    our    review,       we   conclude      that        substantial

evidence     supports    the    finding       that     Xu    did     not         establish

eligibility for withholding of removal.                  We likewise uphold the

finding below that Xu failed to demonstrate that it is more

likely than not that she would be tortured if removed to China.

8   C.F.R.     § 1208.16(c)(2)     (2008).           Finally,        we     decline     to

consider evidence in the administrative record that was not the

basis for the Board’s decision currently before us, see 8 U.S.C.

§ 1252(b)(4)(A)     (2006),      and     deny     Xu’s      motion        for     abeyance

pending a ruling on her motion to reopen as moot.

             We thus 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   the    court   and    argument      would    not    aid     the        decisional

process.

                                                     PETITION DISMISSED IN PART
                                                             AND DENIED IN PART




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