UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-1148

DUNG T. NGUYEN,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General,

Respondent.

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

Appeals.

Submitted: July 10, 2012 Decided: July 31, 2012

Before SHEDD, AGEE, and DIAZ, Circuit Judges.

Petition denied by unpublished per curiam opinion.

Hoang Nguyen, Duluth, Georgia, for Petitioner. Stuart F. 

Delery, Acting Assistant Attorney General, Carl H. McIntyre, 

Assistant Director, Susan K. Houser, 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Unpublished opinions are not binding precedent in this circuit.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:

Dung T. Nguyen, a native and citizen of Vietnam, 

petitions for review of an order of the Board of Immigration 

Appeals (“Board”) dismissing his appeal from the immigration 

judge’s order denying his applications for asylum, withholding 

from removal and withholding under the Convention Against 

Torture (“CAT”). We deny the petition for review. 

Nguyen’s asylum application was denied because it was 

untimely and he did not show extraordinary or changed 

circumstances that would warrant the late filing. 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 § 1252(a)(2)(D) 

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 
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colorable constitutional claim or question of law, [the court’s] 

review of the issue is not authorized by § 1252(a)(2)(D).” Id. 

Nguyen does not raise a constitutional claim or legal issue 

regarding the finding that his asylum application was untimely. 

Thus, we are without jurisdiction to review the determination.

While this court does not have jurisdiction to 

consider the denial of Nguyen’s untimely application for asylum, 

we retain jurisdiction to consider the denial of his request for 

withholding of removal as this claim is not subject to the oneyear limitation bar.*

 See 8 C.F.R. § 1208.4(a) (2012). The 

current state of the law regarding this court’s review of a 

final order denying withholding of removal was recently 

summarized in Djadjou v. Holder, 662 F.3d 265, 272-74 (4th Cir. 

2011). In order to qualify for withholding of removal, the 

alien must show a clear probability of persecution on account of 

a protected ground, such as political opinion or religious 

belief. See 8 U.S.C. § 1231(b)(3)(A) (2006); 8 C.F.R. 

 * Nguyen does not challenge the denial of relief under the 

CAT. Accordingly, this court need not review this 

determination. See Fed. R. App. P. 28(a)(9)(A) (“[T]he argument 

. . . must contain . . . appellant’s contentions and the reasons 

for them, with citations to the authorities and parts of the 

record on which the appellant relies.”); Edwards v. City of 

Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir. 1999) (“Failure to 

comply with the specific dictates of [Rule 28] with respect to a 

particular claim triggers abandonment of that claim on 

appeal.”). 
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§ 1208.16(b)(1)(i) (2012). A showing of past persecution on 

account of a protected ground creates a rebuttable presumption 

that the threat would recur upon removal. 8 C.F.R. 

§ 1208.16(b)(1)(i). If the alien fails to show past 

persecution, he can establish a well-founded fear of persecution 

by showing that it is more likely than not that he will be 

persecuted on account of a protected ground if removed to his 

country. Id., § 1208.16(b)(1)(iii). If the alien meets his 

burden, withholding of removal is mandatory. 

When the Board adopts that immigration judge’s 

decision and includes its own reasons for affirming, this court 

reviews both decisions and will uphold the Board’s decision 

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

discretion. The standard of review of the agency’s findings is 

narrow and deferential. Factual findings are 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. See Djadjou, 662 F.3d at 272-74 (case citations 

omitted).

We conclude substantial evidence supports the finding 

that Nguyen did not establish past persecution or a well-founded 

fear of persecution. Nguyen’s testimony simply lacked detail 

regarding his arrest and detention and the record does not 
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compel the conclusion that he suffered past persecution. 

Similarly, the record does not compel the conclusion that there 

is an objectively reasonable well-founded fear of persecution 

merely because Nguyen is a practicing Buddhist who has 

participated in one demonstration that drew attention to the 

need for religious freedom. 

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 the 

court and argument would not aid the decisional process.

PETITION DENIED