Gan v. Ashcroft

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 04-1244

LIANG NIO GAN,

Petitioner,

versus

JOHN ASHCROFT, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. (A79-473-528)

Submitted: August 18, 2004 Decided: August 26, 2004

Before WILKINSON, WILLIAMS, and MOTZ, Circuit Judges.

Petition dismissed in part; denied in part by unpublished per curiam opinion.

Herbert G. Fogle, Jr., Atlanta, Georgia, for Petitioner. Peter D. Keisler, Assistant Attorney General, Richard M. Evans, Assistant Director, Carl H. McIntyre, Jr., Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM:

Liang Nio Gan, a native and citizen of Indonesia,

petitions for review of an order of the Board of Immigration

Appeals (Board) affirming the immigration judge’s denial of her

application for asylum and withholding of removal.

Gan first challenges the Board’s finding that her asylum

application was untimely with no showing of changed or

extraordinary circumstances excusing the late filing. See 8 U.S.C.

§ 1158(a)(2)(B) (2000); 8 C.F.R. § 1208.4(a)(4), (5) (2004). We

conclude we lack jurisdiction to review this claim. See 8 U.S.C.

§ 1158(a)(3) (2000).

While we do not have jurisdiction to consider the Board’s

denial of Gan’s asylum claim, we retain jurisdiction to consider

the denial of her request for withholding of removal, which is not

subject to the one-year time limitation. See 8 C.F.R. § 1208.4(a)

(2004). “To qualify for withholding of removal, a petitioner must

show that [s]he faces a clear probability of persecution because of

h[er] race, religion, nationality, membership in a particular

social group, or political opinion.” Rusu v. INS, 296 F.3d 316, 324

n.13 (4th Cir. 2002) (citing INS v. Stevic, 467 U.S. 407, 430

(1984)). Based on our review of the record, we conclude

substantial evidence supports the finding that Gan has failed to

meet this standard.

- 2 -  Accordingly, we dismiss the petition for review in part

and deny it 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; DENIED IN PART

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