                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 09-1232


ABDULLAHI SAID HERSI; ABDULKADIR A. SAID; MOHAMUD AB SAID;
MOHAMED ABDULLAHI SAID,

                Petitioners,

          v.

ERIC H. HOLDER, JR., Attorney General,

                Respondent.



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


Submitted:   March 15, 2010                  Decided:   March 29, 2010


Before GREGORY and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Petition denied by unpublished per curiam opinion.


Ivan Yacub, YACUB LAW OFFICES, Falls Church, Virginia, for
Petitioners.   Tony West, Assistant Attorney General, Stephen J.
Flynn, Assistant Director, Annette M. Wietecha, 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Unpublished opinions are not binding precedent in this circuit.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:

            The Petitioners, Abdullahi Said Hersi, and his adult

children,   Abdulkadir        A.    Said,       Mohamud    Ab    Said,      and    Mohamed

Abdullahi Said, natives and citizens of Somalia, petition for

review of an order of the Board of Immigration Appeals (“Board”)

dismissing their appeal from the immigration judge’s decision,

which denied their asylum applications as untimely and granted

their requests for withholding of removal.                      Finding no error, we

deny the petition for review.

            An    asylum   applicant        must    demonstrate        “by     clear      and

convincing evidence that the application has been filed within 1

year   after     the   date   of    the     alien’s       arrival      in    the       United

States.”    8 U.S.C. § 1158(a)(2)(B) (2006).                     An application may

be   considered    outside     of    the    one-year      period       where      an   alien

demonstrates       the     existence        of     changed        or     extraordinary

circumstances to excuse the untimely filing pursuant to 8 U.S.C.

§ 1158(a)(2)(D).

            Pursuant to 8 U.S.C. § 1158(a)(3), the court typically

lacks jurisdiction to review a determination that an alien has

failed to timely file his asylum application.                            See Gomis v.

Holder, 571 F.3d 353, 358-59 (4th Cir. 2009), cert. denied, __

S. Ct. __, 78 U.S.L.W. 3091 (U.S. Jan. 11, 2010) (No. 09-194).

Although 8 U.S.C. § 1252(a)(2)(D) (2006) provides that nothing

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

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

construed       as    precluding        review      of     constitutional           claims    or

questions of law,” this court has found that the question of

whether   an     alien      timely      filed      his    asylum    application         “is   a

discretionary         determination          based       on   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.

            In       this     case,     however,          the   Petitioners          raise    a

reviewable question of law over which we retain jurisdiction

pursuant to § 1252(a)(2)(D). *                In their brief before this court,

the Petitioners argue that the immigration judge and the Board

impermissibly held them to a stricter legal standard than the

“clear and convincing evidence” standard set forth in 8 U.S.C.

§ 1158(a)(2)(B).            They maintain that the Board “imposed a more

stringent   standard          than    what    is     required      to    convict      under    a

beyond a reasonable doubt evidentiary standard.”                                As found by

several of our sister courts, “[a] reviewable ‘question of law’

may be raised where the agency used the ‘wrong legal standard’

in coming to a determination on a discretionary determination.”

Lumataw v. Holder, 582 F.3d 78, 85 (1st Cir. 2009) (holding that


     *
       We previously denied the Attorney General’s                                  motion    to
dismiss the petition for review on this ground.



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the   question     of     whether     the    immigration         judge     and       the    Board

applied the correct filing deadline in assessing the timeliness

of petitioner’s asylum application was a reviewable question of

law); see Khan v. Filip, 554 F.3d 681, 689 (7th Cir. 2009)

(recognizing       that        “[s]ome       discretionary             determinations         do

present underlying, reviewable questions of law, such as those

in which the agency is alleged to have applied the wrong legal

standard”); Khan v. Gonzales, 495 F.3d 31, 35 (2d Cir. 2007)

(holding    that    “where,      as    here,       a    petitioner       argues       that    the

agency     applied       an     erroneous         legal       standard        in     making     a

discretionary determination, the petitioner raises a question of

law, which we have jurisdiction to review”).

            Based       on     our    review       of     the    record,        we    find    no

indication that the Petitioners were held to an impermissibly

high standard of review.              We find that the Board articulated the

correct    standard       of    review,      thoroughly         analyzed       the    evidence

submitted     by        the     Petitioners,            and     properly           upheld     the

immigration judge’s finding that the evidence was insufficient

to    establish      by       clear    and     convincing             evidence       that     the

Petitioners filed their asylum application within one year of

their arrival in the United States.

            Accordingly,         we    deny       the    petition       for     review.        We

dispense    with        oral    argument       because          the     facts       and     legal



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contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                  PETITION DENIED




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