By Rolf Garcia-Gallont

Today, in the per curiam unpublished opinion of Nguyen v. Holder, the Fourth Circuit upheld the Board of Immigration Appeals’ (“BIA”) dismissal of Dung Duc Nguyen’s appeal from the denial of his applications for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”).

Attorney General’s Determination Regarding The Timeliness of Nguyen’s Asylum Application Is Not Reviewable

8 U.S.C. § 1158(a)(1) provides that any alien who is physically present in the United States may apply for asylum. § 1158(a)(2)(B) imposes a time limit of one year after the date of the alien’s arrival in the United States to file an asylum application. The time limit may be waived if the alien demonstrates to the satisfaction of the Attorney General that changed or extraordinary circumstances justify the delay. § 1158(a)(3) expressly provides that “no court shall have jurisdiction to review any determination of the Attorney General.”

While 8 U.S.C. § 1252(a)(2)(D) allows for judicial review of constitutional claims or questions of law, the Fourth Circuit held in Gomis v. Holder 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,” not a question of law.

Because Nguyen did not raise a constitutional claim or a question of law, the court held that it did not have jurisdiction to review the finding that Nguyen’s asylum application was untimely and he did not establish changed or extraordinary circumstances justifying tolling of the one-year time limit.

Substantial Evidence Supported the Immigration Judge’s Finding That Nguyen Was Not Eligible for Withholding from Removal

Under 8 U.S.C. § 1231(b)(3)(B)(iii), an alien may be removed from the United States to his country of origin even if the alien’s life or freedom are threatened, if there are serious reasons to believe that the alien committed a serious nonpolitical crime outside the United States before arriving in the United States.

The immigration judge’s (“IJ”) factual findings regarding whether there were serious reasons to believe Nguyen had committed a serious nonpolitical crime are reviewed for substantial evidence. The court concluded that substantial evidence supported the IJ’s findings, and upheld the dismissal of Nguyen’s appeal.

Finally, the court held that because Nguyen failed to show that it was more likely than not that he would be tortured if he returned to Vietnam, Nguyen was also ineligible for deferral of removal under the CAT.

Petition for Review Denied

The Fourth Circuit affirmed the BIA’s dismissal of appeal, and denied Nguyen’s petition for review.

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