    09-0393-ag
    Khan v. Holder
                                                                                   BIA
                                                                          Balasquide, IJ
                                                                          A097 532 770
                      UNITED STATES COURT OF APPEALS
                          FOR THE SECOND CIRCUIT

                               SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.


         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Daniel Patrick Moynihan
    United States Courthouse, 500 Pearl Street, in the City of
    New York, on the 3 rd day of March, two thousand ten.

    PRESENT:
             ROBERT D. SACK,
             REENA RAGGI,
             RICHARD C. WESLEY,
                   Circuit Judges.
    _____________________________________

    NASEEM KHAN,
             Petitioner,

                     v.                                    09-0393-ag
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:               Usman B. Ahmad, Law Office of Usman
                                  B. Ahmad, P.C., Long Island City,
                                  New York.

    FOR RESPONDENT:               Tony West, Assistant Attorney
                                  General, Civil Division; Linda S.
                                  Wernery, Assistant Director; Trish
                                  Maskew, Trial Attorney, Office of
                          Immigration Litigation, United
                          States Department of Justice, Civil
                          Division, Washington, D.C.

    UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED in part and DISMISSED in part.

    Petitioner Naseem Khan, a native and citizen of

Pakistan, seeks review of a December 31, 2008 order of the

BIA affirming the February 13, 2008 decision of Immigration

Judge (“IJ”) Javier Balasquide pretermitting his application

for asylum and denying his application for withholding of

removal and relief under the Convention Against Torture

(“CAT”).     In re Naseem Khan, No. A097 532 770 (B.I.A. Dec.

31, 2008), aff’g No. A097 532 770 (Immig. Ct. N.Y. City Feb.

13, 2008).     We assume the parties’ familiarity with the

underlying facts and procedural history in this case.

    Under the circumstances of this case, we review the

decision of the IJ as supplemented by the BIA.     See, e.g.,

Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).        The

applicable standards of review are well-established.     See

Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008);

Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).


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I.    Asylum

      Title 8, Section 1158(a)(3) of the United States Code

provides that no court shall have jurisdiction to review the

agency’s finding that an asylum application was untimely

under 8 U.S.C. § 1158(a)(2)(B), or its finding of neither

changed nor extraordinary circumstances excusing

untimeliness under 8 U.S.C. § 1158(a)(2)(D).

Notwithstanding that provision, this Court retains

jurisdiction to review constitutional claims and questions

of law.     See 8 U.S.C. § 1252(a)(2)(D).   Nevertheless,

because Khan challenges only purely factual determinations

and the agency’s exercise of discretion, we dismiss the

petition for review to the extent he challenges the agency’s

pretermission of his asylum application.      See 8 U.S.C.

§ 1158(a)(3).

II.   Withholding of Removal and CAT Relief

      Both the IJ and the BIA found that Khan was not

credible.      In addition, they concluded that even if he had

testified credibly, he failed to meet his burden of proof.

Khan does not challenge the latter determination, waiving

any such argument.      See Yueqing Zhang v. Gonzales, 426 F.3d

540, 545 n.7 (2d Cir. 2005).      That waiver is dispositive of


                                 3
his withholding of removal claim.     In addition, Khan did not

challenge the denial of his request for CAT relief either

before the BIA or this Court, abandoning that claim.     See

Gui Yin Liu v. INS, 508 F.3d 716, 723 n.6 (2d Cir. 2007).

    For the foregoing reasons, the petition for review is

DENIED in part and DISMISSED in part.     As we have completed

our review, any pending motion for a stay of removal in this

petition is DISMISSED as moot.     Any pending request for oral

argument in this petition is DENIED in accordance with

Federal Rule of Appellate Procedure 34(a)(2), and Second

Circuit Local Rule 34.1(b).

                              FOR THE COURT:
                              Catherine O’Hagan Wolfe, Clerk




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