                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 14-1512


MYNOR MIGUEL BARRERA-GALVEZ,

                Petitioner,

          v.

ERIC H. HOLDER, JR., Attorney General,

                Respondent.



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


Submitted:   December 12, 2014              Decided:   January 15, 2015


Before WYNN and DIAZ, Circuit Judges, and DAVIS, Senior Circuit
Judge.


Petition dismissed in part and denied in part by unpublished per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


Ali Herischi, Nadya Maldonado, HERISCHI & ASSOCIATES, LLC,
Bethesda, Maryland, for Petitioner.  Joyce R. Branda, Acting
Assistant Attorney General, John S. Hogan, Senior Litigation
Counsel, Nicole N. Murley, 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Unpublished opinions are not binding precedent in this circuit.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:

              Mynor Miguel Barrera-Galvez, a native and citizen of

Guatemala, 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        withholding       under      the

Convention Against Torture (“CAT”).                We dismiss in part and deny

in part.

              The    Board   agreed      with    the    IJ    that    Barrera-Galvez’s

asylum    application        was   not    timely       and     that    there       were   no

exceptions      to     excuse      the    untimeliness.               Under    8    U.S.C.

§ 1158(a)(3) (2012), 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 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 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.”

                                           2
Gomis, 571 F.3d at 358.         Because Barrera-Galvez does not raise a

colorable constitutional claim or question of law concerning the

denial of asylum relief, review of this issue is not authorized

by § 1252(a)(2)(D). *

             Concerning Barrera-Galvez’s challenges to the denial

of withholding of removal and protection under the CAT, we have

thoroughly     reviewed    the        record,       including    Barrera-Galvez’s

testimony and the documentary exhibits.                   We conclude that the

record evidence does not compel a ruling contrary to any of the

administrative findings of fact, see 8 U.S.C. § 1252(b)(4)(B),

and   that   substantial   evidence          supports   the     Board’s   decision.

See INS v. Elias–Zacarias, 502 U.S. 478, 481 (1992).                           We note

that Barrera-Galvez’s proposed particular social group was not

presented    to   the   Board    or    the    IJ.      His   failure     to    exhaust

administrative      remedies     in      this       regard    prevents        us   from

considering the viability of this particular social group.                           8

U.S.C. § 1252(d)(1); see Kporlor v. Holder, 597 F.3d 222, 226-27

(4th Cir. 2010); Asika v. Ashcroft, 362 F.3d 264, 267 n.3 (4th

Cir. 2004).       Accordingly, we deny the petition for review as it

concerns the denial of withholding of removal and protection


      *
       We note that the cases cited by Barrera-Galvez from the
Ninth Circuit for the proposition that we have jurisdiction to
review   the  Board’s   decision  on  this issue  are  clearly
distinguishable and non-precedential.



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under the CAT for the reasons stated by the Board.                  See In re:

Barrera-Galvez (B.I.A. Apr. 29, 2014).

            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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