UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-1063

XIAOLAN PAN,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General,

Respondent.

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

Appeals.

Submitted: September 27, 2012 Decided: October 4, 2012

Before AGEE, KEENAN, and WYNN, Circuit Judges.

Petition dismissed in part and denied in part by unpublished per 

curiam opinion.

Gang Zhou, New York, New York, for Petitioner. Stuart F. 

Delery, Acting Assistant Attorney General, William C. Peachey, 

Assistant Director, Daniel E. Goldman, Senior Litigation 

Counsel, Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Xiaolan Pan, 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 her appeal from the 

Immigration Judge’s order denying her applications for asylum 

and withholding of removal. We dismiss in part and deny in part 

the petition for review.

Pan first challenges the finding below that she failed 

to timely file her asylum application. 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 nothing in § 1252(a)(2)(B), (C), “or in any 

other provision of this Act . . . which limits or eliminates 

judicial review, shall be construed as precluding review of 

constitutional claims or questions of law,” this court has 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.” Gomis, 571 F.3d at 358. Accordingly, “absent a 

colorable constitutional claim or question of law, [the Court’s] 
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review of the issue is not authorized by § 1252(a)(2)(D).” Id. 

Because Pan fails to raise any such issues, we lack jurisdiction 

to review this finding. 

Next, Pan disputes the conclusion that she failed to 

qualify for the relief of 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 her life or freedom 

would be threatened in the country of removal because of her 

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). Based on our review 

of the record, we conclude that substantial evidence supports 

the agency’s adverse credibility determination as well as its 

finding that Pan failed to demonstrate past persecution or a 

clear probability of future persecution. Because the evidence 

does not compel us to conclude to the contrary, we uphold the 

denial of relief. See Djadjou v. Holder, 662 F.3d 265, 273 (4th 

Cir. 2011), petition for cert. filed (Aug. 6, 2012). 

We accordingly 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 
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materials before the court and argument would not aid the 

decisional process.

PETITION DISMISSED IN PART

AND DENIED IN PART