                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 11-1735


ZHONG XIN FU,

                Petitioner,

          v.

ERIC H. HOLDER, JR., Attorney General,

                Respondent.



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


Submitted:   February 16, 2012              Decided:   March 5, 2012


Before AGEE, WYNN, and DIAZ, Circuit Judges.


Dismissed in part and denied in part by unpublished per curiam
opinion.


Charles Christophe, CHRISTOPHE LAW GROUP, P.C., New York, New
York, for Petitioner.   Tony West, Assistant Attorney General,
Anthony W. Norwood, Senior Litigation Counsel, Lisa M. Damiano,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Zhong Xin Fu, a native and citizen of China, petitions

for judicial review of an order of the Board of Immigration

Appeals   (“Board”)         denying    his         application      for     asylum,

withholding of removal, and protection under Article III of the

United Nations Convention Against Torture (“CAT”).                    We dismiss

the petition in part and deny it in part.

          Fu   first        challenges       the     determination        that    his

application for asylum was untimely.                As correctly noted by the

Attorney General, pursuant to 8 U.S.C. § 1158(a)(3) (2006), we

lack jurisdiction to review the Board’s decision as to this

issue.    Although     Fu    alleges   that        the   Board   mischaracterized

facts relating to his contention that his untimely filing should

be excused based on changed circumstances, thereby committing a

reviewable legal error, we have concluded that the question of

whether an alien timely filed his asylum application or whether

changed or exceptional circumstances applies “is a discretionary

determination based on factual circumstances.”                   Gomis v. Holder,

571 F.3d 353, 358 (4th Cir. 2009).                 Fu’s attempt to frame his

quarrel with the Board’s factfinding as a legal question does

not provide this court with a basis for jurisdiction.

          Next,   Fu    argues    that       he    has   demonstrated      a     well-

founded fear that he will be imprisoned because he is a member

of the China Democracy Party and he is entitled to withholding

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of   removal.*         Fu   contends        political      prisoners      are    routinely

tortured in China and, accordingly, asserts he also is entitled

to protection under CAT.

            To establish eligibility for withholding of removal,

an alien must show a clear probability that, if he was removed

to his native country, his “life or freedom would be threatened”

on a protected ground.                8 U.S.C. § 1231(b)(3)(A) (2006); see

Djadjou    v.    Holder,       662    F.3d     265,   272    (4th   Cir.        2011).      A

determination regarding eligibility for withholding of removal

is to be affirmed if supported by substantial evidence on the

record considered as a whole.                  Niang v. Gonzales, 492 F.3d 505,

510 (4th Cir. 2007).            Factual findings made by the Board or the

immigration       judge        “are        conclusive      unless       any     reasonable

adjudicator would be compelled to conclude to the contrary.”

8 U.S.C. § 1252(b)(4)(B) (2006).

            Our    review       of    the     evidence     of    record       leads   us   to

conclude   that        Fu   fails     to    show    that   the   evidence       compels     a

contrary result on his eligibility for withholding of removal.

Because Fu has not submitted sufficient evidence that he will be

imprisoned,       we    also    uphold        the   finding      that     Fu    failed     to




      *
       The Attorney General argues that Fu has                                 waived this
argument by relying on the wrong burden of proof.                              We disagree
and consider the argument on the merits.


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demonstrate that it is more likely than not that he would be

tortured if removed to China.        8 C.F.R. § 1208.16(c)(2) (2011).

           Accordingly,   we   dismiss    the   petition   for   review   of

Fu’s asylum claim for lack of jurisdiction and deny the petition

for review of his withholding of removal and CAT claims.                  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.



                                                       DISMISSED IN PART;
                                                           DENIED IN PART




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