UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-1506

XINYOU LIN,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General,

Respondent.

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

Appeals.

Submitted: October 16, 2012 Decided: October 22, 2012

Before MOTZ, SHEDD, and DUNCAN, Circuit Judges.

Petition dismissed in part and denied in part by unpublished per 

curiam opinion.

Troy Nader Moslemi, ALL PEOPLES LAW CENTER, P.A., New York, New 

York, for Petitioner. Stuart F. Delery, Acting Assistant 

Attorney General, Jennifer L. Lightbody, 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Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Xinyou Lin, 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 denial of his requests for asylum, 

withholding of removal, and protection under the Convention 

Against Torture.

We first note that the agency denied Lin’s request for 

asylum on the ground that he failed to establish by clear and 

convincing evidence that he filed his asylum application within 

one year of his arrival in the United States, and failed to 

establish either changed or extraordinary circumstances to 

excuse the late filing of his application. See 8 U.S.C. 

§ 1158(a)(2)(B) (2006); 8 C.F.R. § 1208.4(a)(2) (2012). We lack 

jurisdiction to review this determination pursuant to 8 U.S.C. 

§ 1158(a)(3) (2006), and find that Lin has failed to raise a 

colorable constitutional claim or question of law that would 

fall under the exception set forth in 8 U.S.C. § 1252(a)(2)(D) 

(2006).* See Gomis v. Holder, 571 F.3d 353, 358-59 (4th Cir. 

 * We have thoroughly reviewed Lin’s claim that the 

immigration judge deprived him of due process by denying his 

motion for a continuance. Because Lin fails to show the 

requisite prejudice to establish a due process violation, see

Anim v. Mukasey, 535 F.3d 243, 256 (4th Cir. 2008), we find that 

he has failed to raise a colorable constitutional claim for 

purposes of 8 U.S.C. § 1252(a)(2)(D). Additionally, we uphold 

(Continued)
3

2009). Given this jurisdictional bar, we cannot review the 

underlying merits of his asylum claims. Accordingly, we dismiss 

this portion of the petition for review.

Lin also contends that the agency erred in denying his 

request for withholding of removal. “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 (citations 

omitted); see 8 U.S.C. § 1231(b)(3) (2006). An alien “must show 

a ‘clear probability of persecution’ on account of a protected

ground.” Djadjou v. Holder, 662 F.3d 265, 272 (4th Cir. 2011) 

(quoting INS v. Stevic, 467 U.S. 407, 430 (1984)), petition for 

cert. filed, 81 U.S.L.W. 3075 (Aug. 6, 2012). Based on our 

review of the record, we conclude that substantial evidence 

supports the finding that Lin failed to establish that he faces 

a clear probability of persecution in China based upon his 

religion. 

 

the immigration judge’s denial of Lin’s motion for a 

continuance, finding no abuse of discretion. See Lendo v. 

Gonzales, 493 F.3d 439, 441 (4th Cir. 2007) (setting forth 

standard of review).
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Finally, Lin challenges the denial of his request for 

protection under the Convention Against Torture. To qualify for 

such protection, a petitioner bears the burden of proof of 

showing “it is more likely than not that he or she would be 

tortured if removed to the proposed country of removal.” 8 

C.F.R. § 1208.16(c)(2) (2012). Based on our review of the 

record, we conclude that substantial evidence supports the 

denial of Lin’s request for relief. See Dankam v. Gonzales, 495 

F.3d 113, 124 (4th Cir. 2007) (setting forth standard of 

review). Lin simply failed to demonstrate that it is more 

likely than not that he will be tortured based on his religious 

practices or for violating China’s illegal exit laws. 

Accordingly, we dismiss the petition for review in 

part and deny the petition for review in part. 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 DISMISSED IN PART 

AND DENIED IN PART