Filed: Sep. 26, 2012
Latest Update: Feb. 12, 2020
Summary: 11-4985 BIA Balayaba v. Holder Rohan, IJ A079 609 502 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE N
Summary: 11-4985 BIA Balayaba v. Holder Rohan, IJ A079 609 502 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NO..
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11-4985 BIA
Balayaba v. Holder Rohan, IJ
A079 609 502
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 26th day of September, two thousand twelve.
5
6 PRESENT:
7 RALPH K. WINTER,
8 JOSEPH M. McLAUGHLIN,
9 PETER W. HALL,
10 Circuit Judges.
11 _____________________________________
12
13 FOUSSEYNI BALAYABA,
14 Petitioner,
15
16 v. 11-4985
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Gary J. Yerman, New York, New York.
24
25 FOR RESPONDENT: Stuart F. Delery, Acting Assistant
26 Attorney General; John S. Hogan,
27 Senior Litigation Counsel; Michael
28 C. Heyse, Trial Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 Washington, D.C.
1
2 UPON DUE CONSIDERATION of this petition for review of a
3 Board of Immigration Appeals (“BIA”) decision, it is hereby
4 ORDERED, ADJUDGED, AND DECREED that the petition for review
5 is DISMISSED in part and DENIED in part.
6 Fousseyni Balayaba, a native and citizen of Mauritania,
7 seeks review of a November 4, 2011, order of the BIA
8 affirming the October 26, 2009, decision of Immigration
9 Judge (“IJ”) Patricia A. Rohan, which pretermitted his
10 application for asylum as untimely, and denied his
11 applications for withholding of removal and relief under the
12 Convention Against Torture (“CAT”). In re Fousseyni
13 Balayaba, No. A079 609 502 (B.I.A. Nov. 4, 2011), aff’g No.
14 A079 609 502 (Immig. Ct. N.Y. City Oct. 26, 2009). We
15 assume the parties’ familiarity with the underlying facts
16 and procedural history in this case.
17 Under the circumstances of this case, we have reviewed
18 the IJ’s decision as modified by the BIA decision. See Xue
19 Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d
20 Cir. 2005). The applicable standards of review are well-
21 established. See 8 U.S.C. § 1252(b)(4)(B); see also Shi Jie
22 Ge v. Holder,
588 F.3d 90, 93-94 (2d Cir. 2009).
23
24
2
1 I. Asylum
2 Under 8 U.S.C. § 1158(a)(3), no court shall have
3 jurisdiction to review the agency’s finding that an asylum
4 application was untimely under 8 U.S.C. § 1158(a)(2)(B).
5 Although we retain jurisdiction to review constitutional
6 claims and questions of law, 8 U.S.C. § 1252(a)(2)(D), a
7 question of law is not implicated “when the petition for
8 review essentially disputes the correctness of an IJ’s fact-
9 finding or the wisdom of his exercise of discretion,” Xiao
10 Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir.
11 2006). Here, Balayaba challenges the agency’s factual
12 determination and exercise of discretion that he did not
13 arrive in the United States in September 2001; thus, this
14 Court lacks jurisdiction to review that determination.
Id.
15 at 329.
16 II. Withholding of Removal
17 Balayaba challenges the agency’s denial of withholding
18 of removal based on an adverse credibility determination,
19 including the finding that he failed to corroborate his
20 claim. The IJ determined that Balayaba failed to provide
21 credible testimony based on inconsistencies between his
22 testimony and his asylum application regarding his departure
23 from Senegal and the manner of his arrival in the United
3
1 States, an omission in his original asylum application
2 regarding his alleged mistreatment in Mauritania, and his
3 failure to provide reasonably available corroboration. The
4 BIA modified the IJ’s decision, however, finding only that
5 “the weaknesses in [Balayaba]’s case gave the [IJ] a
6 legitimate reason to require corroborating evidence.”
7 Contrary to Balayaba’s contention, the agency’s
8 adverse credibility determination is supported by
9 substantial evidence because Balayaba failed to provide
10 testimony or a statement from his cousin, who was available
11 and had the unique opportunity to corroborate each component
12 of his testimony that had been called into question. See
13 Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007)
14 (“the absence of corroboration in general makes an applicant
15 unable to rehabilitate testimony that has already been
16 called into question”).
17 To the extent the BIA concluded that Balayaba failed to
18 meet his burden of proof for withholding of removal based on
19 a lack of corroboration, that conclusion is also supported
20 by substantial evidence because the IJ confirmed that the
21 testimony or statement from Balayaba’s cousin was reasonably
22 available, provided Balayaba an opportunity to explain his
23 failure to produce that evidence, and reasonably found
4
1 Balayaba’s explanation that his cousin simply “couldn’t
2 come” to be inadequate to compel a contrary conclusion. See
3 Jin Shui Qiu v. Ashcroft, 329 F.3d 140, 153 (2d Cir. 2003),
4 overruled on other grounds by Shi Liang Lin v. U.S. Dep’t of
5 Justice,
494 F.3d 296 (2d Cir. 2007); Diallo v. INS, 232
6 F.3d 279, 288-90 (2d Cir. 2000).
7 III. CAT Relief
8 Finally, because Balayaba did not raise his CAT claim
9 before the BIA, this Court lacks jurisdiction to consider
10 the claim. See 8 U.S.C. § 1252(d)(1); see also Karaj v.
11 Gonzales,
462 F.3d 113, 119 (2d Cir. 2006).
12 For the foregoing reasons, the petition for review is
13 DISMISSED in part and DENIED in part. As we have completed
14 our review, any stay of removal that the Court previously
15 granted in this petition is VACATED, and any pending motion
16 for a stay of removal in this petition is DISMISSED as moot.
17 Any pending request for oral argument in this petition is
18 DENIED in accordance with Federal Rule of Appellate
19 Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).
20 FOR THE COURT:
21 Catherine O’Hagan Wolfe, Clerk
22
23
5
