                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 14-2090


DUNG DUC NGUYEN,

                Petitioner,

          v.

ERIC H. HOLDER, JR., Attorney General,

                Respondent.



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


Submitted:   February 9, 2015               Decided:   February 19, 2015


Before MOTZ, SHEDD, and THACKER, Circuit Judges.


Petition denied by unpublished per curiam opinion.


Dung Duc Nguyen, Petitioner Pro Se. Lori B. Warlick, 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Unpublished opinions are not binding precedent in this circuit.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:

               Dung    Duc     Nguyen,   a     native      and    citizen       of    Vietnam,

petitions for review of an order of the Board of Immigration

Appeals   (“Board”)           dismissing     his     appeal      from    the    immigration

judge’s     (“IJ”)       order       denying       his    applications         for     asylum,

withholding      of     removal,       and   protection          under    the       Convention

Against Torture (“CAT”).                Nguyen challenges the findings that:

(1) the asylum application was not timely filed and he did not

show    that    an     exception      should       be    made    in    his    circumstance;

(2) there were serious reasons to believe he committed a serious

nonpolitical          crime    in    Vietnam;       (3)     his       testimony      was     not

credible; and (4) he did not meet his burden of proof showing

that he should be granted deferral of removal under the CAT.                                  We

deny the petition for review.

               Under     8    U.S.C.     § 1158(a)(3)           (2012),       the     Attorney

General’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

Gomis v. Holder, 571 F.3d 353, 358-59 (4th Cir. 2009).                               Although

8   U.S.C.      § 1252(a)(2)(D)          (2012)          provides      that     nothing      in

§ 1252(a)(2)(B), (C), “or in any other provision of this chapter

. . .    which       limits     or    eliminates         judicial      review,       shall    be

construed       as     precluding      review       of    constitutional            claims    or

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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.         Accordingly,            “absent      a   colorable

constitutional claim or question of law, our review of the issue

is not authorized by § 1252(a)(2)(D).”                       Id.     Because Nguyen does

not raise a constitutional claim or a question of law, we are

without    jurisdiction        to       consider       the        finding    that        Nguyen’s

asylum application was untimely and he did not establish changed

or extraordinary circumstances justifying tolling of the one-

year time limit.

            We    conclude         that    substantial            evidence       supports      the

finding that “there are serious reasons to believe that [Nguyen]

committed a serious nonpolitical crime outside the United States

before    [he]     arrived         in     the       United        States.”           8     U.S.C.

§ 1231(b)(3)(B)(iii)          (2012);       see      also     Djadjou       v.    Holder,      662

F.3d 265, 273 (4th Cir. 2011) (factual findings are reviewed for

substantial evidence).              Accordingly, Nguyen is not eligible for

withholding from removal or protection under the CAT.                                      See 8

U.S.C.    § 1231(b)(3)(B)(iii);             8       C.F.R.    § 1208.16(d)(2)            (2014).

However, while Nguyen remains eligible for deferral of removal

under    the     CAT,    we   also        conclude         that    substantial           evidence

supports the adverse credibility finding and the finding that

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Nguyen failed to show that it was more likely than not that he

will   be     tortured    if    he     returns     to   Vietnam.          See    8    C.F.R.

§ 1208.16(c)(2) (2014).

              Accordingly, while we grant Nguyen’s motion for leave

to proceed in forma pauperis, we deny the petition for review,

and    deny    Nguyen’s       motion    for       appointment       of   counsel.         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 DENIED




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