Fabian Canseco VASQUEZ, Petitioner, v. Jefferson B. SESSIONS III, Attorney General, Respondent, 694 F. App'x 128

Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Fabian Canseco Vasquez, a native and citizen of Mexico, petitions for review of an order of the Board of Immigration Appeals (Board) dismissing his appeal from the IJ’s decision denying his applications for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). For the reasons set forth below, we deny the petition for review.

The agency’s decision regarding whether an applicant has complied with the one-year time limit for filing an asylum application or established changed or extraordinary circumstances justifying waiver of that time limit is not reviewable by any court. 8 U.S.C. § 1158(a)(3) (2012); see also Mulyani v. Holder, 771 F.3d 190, 196-97 (4th Cir. 2014); Gomis v. Holder, 571 F.3d 353, 358-59 (4th Cir. 2009).

Although 8 U.S.C. § 1252(a)(2)(D) (2012) provides that any provision under the Immigration and Nationality Act which limits or eliminates judicial review shall not be construed as precluding review of constitutional claims or questions of law, we have 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. We have reviewed the record and Vasquez’s brief and conclude that he fails to raise a colorable constitutional claim or question of law.

Thus, we lack jurisdiction to review the Board’s finding that Vasquez’s asylum application was untimely. We further conclude that the Board’s denial of Vasquez’s applications for withholding of removal and protection under the CAT is supported by substantial evidence and the record does not compel a different result. Id. at 359; Gandziami-Mickhou v. Gonzales, 445 F.3d 351, 354 (4th Cir. 2006). 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