                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 11-1580


LALU AHMAD MAKBUL,

                Petitioner,

          v.

ERIC H. HOLDER, JR., Attorney General,

                Respondent.



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


Submitted:   January 12, 2012               Decided:   January 31, 2012


Before WILKINSON, NIEMEYER, and AGEE, Circuit Judges.


Petition denied by unpublished per curiam opinion.


Ronald D. Richey, LAW OFFICE OF RONALD D. RICHEY, Rockville,
Maryland, for Petitioner.       Tony West, Assistant Attorney
General, John S. Hogan, Senior Litigation Counsel, Matthew A.
Connelly, 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Unpublished opinions are not binding precedent in this circuit.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:

            Lalu Ahmad Makbul, a native and citizen of Indonesia,

petitions for review of an order of the Board of Immigration

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

judge’s order denying his applications for asylum, withholding

of removal and withholding under the Convention Against Torture

(“CAT”).    We deny the petition for review.

            The      immigration          judge      denied        Makbul’s       asylum

application       because   he       filed    it    more    than    one    year   after

entering the United States and he did not show changed country

conditions or extraordinary circumstances that would excuse the

one-year filing period.              Under 8 U.S.C. § 1158(a)(3) (2006), the

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

§ 1252(a)(2)(D) provides that nothing in § 1252(a)(2)(B), (C),

“or in any other provision of this Act . . . which limits or

eliminates     judicial     review,      shall      be   construed    as    precluding

review of constitutional claims or questions of law,” this court

has 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

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factual circumstances.”          Gomis, 571 F.3d at 358.               Accordingly,

“absent a colorable constitutional claim or question of law,

[the     court’s]   review    of     the       issue    is   not     authorized   by

§ 1252(a)(2)(D).”     Id.

            Because Makbul fails to raise a constitutional claim

or colorable question of law, this court lacks jurisdiction to

review    the   finding   that     his   asylum        application    was   untimely

filed.

            While   this     court       does     not    have      jurisdiction   to

consider the denial of Makbul’s untimely application for asylum,

the court retains jurisdiction to consider the denial of his

requests for withholding of removal and protection under the CAT

as these claims are not subject to the one-year time limitation.

See 8 C.F.R. § 1208.4(a) (2011).

            “Withholding of removal is available under 8 U.S.C.

§ 1231(b)(3) if the alien shows that it is more likely than not

that h[is] life or freedom would be threatened in the country of

removal because of h[is] race, religion, nationality, membership

in a particular social group, or political opinion.”                     Gomis, 571

F.3d at 359 (internal quotation marks omitted); see 8 U.S.C.

§ 1231(b)(3) (2006).         “This is a more stringent standard than

that for asylum . . . . [and], while asylum is discretionary, if

an alien establishes eligibility for withholding of removal, the



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grant is mandatory.”            Gandziami-Mickhou v. Gonzales, 445 F.3d

351, 353 (4th Cir. 2006) (citations omitted).

            This court affords “a high degree of deference” to a

determination that an alien is not eligible for withholding of

removal, and reviews administrative findings of fact under the

substantial evidence standard.                Gomis, 571 F.3d at 359.          Under

the substantial evidence test, affirmance is mandated “if the

evidence is not ‘so compelling that no reasonable factfinder

could’ agree with the BIA’s factual conclusions.”                       Gandziami-

Mickhou,    445   F.3d   at    354    (quoting    Huaman-Cornelio       v.   Bd.    of

Immigration Appeals, 979 F.2d 995, 999 (4th Cir. 1992)).

            We    conclude     that     substantial      evidence    supports      the

finding    that    Makbul      failed    to    show    that   he    suffered      past

persecution or that it was more likely than not that his life or

freedom would be threatened due to a protected ground if he

returns.     We also conclude that substantial evidence supports

the Board’s decision that Makbul did not show he was eligible

for relief under the CAT.

            Makbul has waived review of the Board’s decision not

to   reinstate    a   period    of    voluntary       departure    because   in    his

brief, he fails to challenge the reasoning behind the Board’s

decision.        See Yousefi v. INS, 260 F.3d 318, 326 (4th Cir.

2001).



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           Accordingly,   we   deny       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 DENIED




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