NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 3 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT SHENGAN CAO, No. 15-70453 Petitioner, Agency No. A200-787-219 v. MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted October 20, 2020** Honolulu, Hawaii Before: WALLACE, BEA, and BENNETT, Circuit Judges. Shengan Cao, a native and citizen of China, petitions for review of the decision of the Board of Immigration Appeals (BIA) which affirmed an Immigration Judge’s (IJ) denial of Cao’s application for asylum and withholding of removal. For the reasons that follow, we dismiss in part and deny in part the * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See FED. R. APP. P. 34(a)(2). petition. Cao entered the United States as an authorized non-immigrant worker on December 1, 2008. When his work visa expired on October 10, 2009, Cao continued to live and work in the U.S. Territory of Guam without authorization. On September 20, 2010, Cao filed an untimely application for asylum and sought withholding of removal and protection under the Convention Against Torture (CAT). The Government subsequently initiated removal proceedings in which Cao waived his request for CAT protection. After a hearing, the IJ determined that Cao was statutorily ineligible for asylum because the application was filed more than one year after Cao’s arrival in the United States. See 8 U.S.C. § 1158(a)(2)(B). The IJ found Cao had failed to show “extraordinary circumstances” related to the delay that reasonably excused its duration. See 8 U.S.C. § 1158(a)(2)(D). In addition, the IJ determined that Cao was ineligible for withholding of removal because his conflicting statements regarding fear of persecution in China rendered Cao not credible. See 8 U.S.C. §§ 1158(b)(1)(B), 1231(b)(3)(C). The BIA adopted the IJ’s decision in relevant part and dismissed Cao’s administrative appeal. Cao timely petitioned for review. We have jurisdiction to review final orders of removal for substantial evidence. 8 U.S.C. § 1252(a)(1), (b)(4)(B); Shrestha v. Holder, 590 F.3d 1034, 1043 (9th Cir. 2010). However, we lack jurisdiction to review the BIA’s 2 determination that Cao is time-barred from seeking asylum because the agency’s decision turned on resolving disputed issues of fact. 8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D); Gasparyan v. Holder, 707 F.3d 1130, 1134 (9th Cir. 2013). 1. Congress limited this court’s jurisdiction over asylum filing deadline determinations to review of constitutional claims and issues of law. 8 U.S.C. § 1252(a)(2)(D). When the BIA’s timeliness determination turns on the application of law to undisputed facts, the Ninth Circuit reviews that determination as a mixed question of law and fact. Singh v. Holder, 656 F.3d 1047, 1051 (9th Cir. 2011). When the BIA’s timeliness determination rests on resolving factual disputes, however, the decision is unreviewable. See Gasparyan, 707 F.3d at 1134 (dismissing petition where ...
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