                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 13-1221


ZHUO GAO,

                 Petitioner,

            v.

ERIC H. HOLDER, JR., Attorney General,

                 Respondent.



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


Submitted:   July 2, 2013                    Decided:   July 24, 2013


Before MOTZ, KING, and AGEE, Circuit Judges.


Petition denied by unpublished per curiam opinion.


Gary J. Yerman, New York, New York, for Petitioner.   Stuart F.
Delery, Acting Assistant Attorney General, David V. Bernal,
Assistant Director, Lindsay W. Zimliki, Trial Attorney, 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Unpublished opinions are not binding precedent in this circuit.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:

               Zhuo     Gao,    a     native       and    citizen    of     the     People’s

Republic of China, petitions for review of an order of the Board

of Immigration Appeals (“Board”) dismissing his appeal from the

immigration judge’s order finding him removable and denying his

applications for asylum, withholding of removal, and withholding

under    the    Convention          Against    Torture      (“CAT”).         We    deny    the

petition for review.

               The    Board    affirmed        the    immigration        judge’s     finding

that Gao did not establish by clear and convincing evidence that

he filed his asylum application within one year of his arrival

in the United States.               The Board also affirmed the finding that

Gao   did    not      establish      a   clear     probability      of     persecution     as

required for withholding of removal.

               Under     8    U.S.C.      §   1158(a)(3)      (2006),       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)        (2006)      provides      that    no     provision

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

construed       as     precluding        review      of   constitutional          claims   or

questions of law,” the question of whether an asylum application

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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.

              Gao     attempts     to     raise        a    constitutional            claim        by

asserting that he was denied due process because his credible

testimony      was    not    considered.          In       order    to       establish       a    due

process   violation          during     removal    proceedings,                Gao    must       show

“(1) that a defect in the proceeding rendered it fundamentally

unfair and (2) that the defect prejudiced the outcome of the

case.”        Anim v. Mukasey, 535 F.3d 243, 256 (4th Cir. 2008).

Prejudice      is    shown    if   the    defect       “was    likely          to    impact       the

results   of     the    proceedings.”           Id.        (internal          quotation      marks

omitted).

              We conclude that Gao’s evidence was considered by the

immigration         judge    and   that    Gao’s       “due        process”         argument       is

merely    a    dispute       regarding     the     weight          accorded          the   record

evidence, not a colorable constitutional claim.                                We accordingly




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lack jurisdiction to review the immigration judge’s finding that

Gao’s asylum petition was untimely filed. *

               While    we    do   not    have   jurisdiction       to    consider       the

denial    of    Gao’s    untimely        application        for   asylum,       we   retain

jurisdiction to review his requests for withholding of removal

and withholding under the CAT.               8 C.F.R. §1208.4(a) (2013).

               “Aliens face a heightened burden of proof to qualify

for withholding of removal to a particular country under the

[Immigration and Nationality Act].”                    Djadjou v. Holder, 662 F.3d

265, 272 (4th Cir. 2011) (internal quotation marks omitted).

“They must show a clear probability of persecution on account of

a   protected     ground.          If    they    meet      this   heightened         burden,

withholding of removal is mandatory.”                       Id. (internal quotation

marks and citation omitted).

               When the Board adopts the immigration judge’s decision

and   includes     its       own   reasons      for    affirming,    we    review       both

decisions.       Id. at 273.             We will uphold the Board’s decision

unless it is manifestly contrary to the law and an abuse of

discretion.        Id.         The   standard         of   review   of    the    agency’s

findings is narrow and deferential, and factual findings are


      *
       Because the untimeliness of Gao’s petition for asylum bars
asylum in this case, see 8 U.S.C. § 1158(a)(2)(B), we do not
review the immigration judge’s alternative rationale for denying
asylum.



                                             4
affirmed     if   supported         by    substantial       evidence.           “Substantial

evidence exists to support a finding unless the evidence . . .

was   such    that       any   reasonable            adjudicator        would     have    been

compelled to conclude to the contrary.”                         Id. (internal quotation

marks omitted).

             We    conclude        that    substantial           evidence     supports     the

finding    that     Gao      did    not    establish        a    clear    probability       of

persecution due to a protected ground if he returns to China.

Although Gao was detained for seven days, the abuse he suffered

and the surrounding circumstances do not compel a finding of a

clear probability of persecution.

             We further conclude that substantial evidence supports

the immigration judge’s finding that Gao did not show that he

was   entitled          to   relief       under       the       CAT.      See      8     C.F.R.

§ 1208.16(c)(2) (2013).

             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

this court and argument would not aid the decisional process.



                                                                          PETITION DENIED




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