14-1114
    Umarov v. Lynch
                                                                                        BIA
                                                                                  Poczter, IJ
                                                                               A088 427 584
                           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 TO A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

         At a stated term of the United States Court of Appeals for
    the Second Circuit, held at the Thurgood Marshall United States
    Courthouse, 40 Foley Square, in the City of New York, on the
    26th day of August, two thousand fifteen.

    PRESENT:
             ROBERT A. KATZMANN,
                  Chief Judge,
             RICHARD C. WESLEY,
             PETER W. HALL,
                  Circuit Judges.
    _____________________________________

    KHUSAN BALTABAEVICH UMAROV, AKA
    KHASAN UMAROV,
             Petitioner,

                      v.                                             14-1114
                                                                     NAC

    LORETTA E. LYNCH, UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                      Tatiana S. Aristova, Plainsboro,
                                         New Jersey.
FOR RESPONDENT:            Joyce R. Branda, Acting Assistant
                           Attorney General; Julie M. Iversen,
                           Senior Litigation Counsel; Annette
                           M. Wietecha, Trial Attorney, Office
                           of Immigration Litigation, U.S.
                           Department of Justice, Washington,
                           D.C.

    UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petition for review is

DENIED.

    Petitioner Khusan Baltabaevich Umarov, a native and

citizen of Uzbekistan, seeks review of a March 18, 2014,

decision of the BIA affirming an April 18, 2012, decision of

an Immigration Judge (“IJ”), denying Umarov’s application for

asylum, withholding of removal, and relief under the Convention

Against Torture (“CAT”).   See In re Khusan Baltabaevich Umarov,

No. A088 427 584 (B.I.A. Mar. 18, 2014), aff’g No. A088 427 584

(Immig. Ct. N.Y.C. Apr. 18, 2012).    We assume the parties’

familiarity with the underlying facts and procedural history

in this case.

    Under the circumstances of this case, we review the

decision of the IJ as modified and supplemented by the BIA.   See

                               2
Xue Hong Yang v. U.S. Dep’t of Justice, 

, 522 (2d

Cir. 2005); Yan Chen v. Gonzales, 

, 271 (2d Cir.

2005).    The applicable standards of review are well

established.    See 8 U.S.C. § 1252(b)(4)(B); Bah v. Mukasey,

, 110 (2d Cir. 2008).

  I.     Withholding of Removal and CAT Relief

       Substantial evidence supports the agency’s determination

that Umarov was not credible.     The agency may, “[c]onsidering

the totality of the circumstances,” base a credibility finding

on inconsistencies in an asylum applicant’s statements and

other record evidence “without regard to whether” they go “to

the heart of the applicant’s claim.”     8 U.S.C.

§ 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 

,

163-64 (2d Cir. 2008).

       Here, the agency reasonably relied on the fact that Umarov

previously submitted an asylum application that he now admits

was false, and that was inconsistent with his present

application.    See Siewe v. Gonzales, 

, 170 (2d Cir.

2007) (holding that an asylum applicant’s presentation of “a

single false document or a single instance of false testimony

                                 3
may (if attributable to the petitioner) infect the balance of

the alien’s uncorroborated or unauthenticated evidence . . .

[and] may also influence the IJ’s assessment of . . . the

credibility of the petitioner.”); see also Xiu Xia 

.

    In addition, Umarov does not challenge the IJ’s finding

that his testimony regarding his alleged arrests was

inconsistent with his second asylum application.     That

finding, standing alone, would support the IJ’s adverse

credibility determination.    See Shunfu Li v. Mukasey, 

, 146-47 (2d Cir. 2008); see also Xiu Xia 

.

    Having questioned Umarov’s credibility, the agency

reasonably relied further on his failure to provide evidence

corroborating his claims.    See Biao Yang v. Gonzales, 

, 273 (2d Cir. 2007).    Given Umarov’s submission of a false

application, his inconsistent statements, and his failure to

corroborate, the agency’s adverse credibility determination is

supported by substantial evidence.    See Xiu Xia 

; 

.

                                4
      Umarov’s claims for withholding of removal and CAT relief

were both based on the set of facts that the IJ found not to

be credible.   Accordingly, that determination is dispositive

of those claims.    See 8 U.S.C. § 1231(b)(3)(C); Paul v.

Gonzales, 

, 156-57 (2d Cir. 2006).1

    II. Motion for a Continuance

      Umarov further argues that the IJ violated his due process

rights when she denied his request to continue proceedings to

permit his sister, whom he failed to list as a witness in advance

of the hearing, to testify.

      An IJ’s denial of a request for a continuance does not

ordinarily implicate a constitutional claim, since “IJs are

accorded wide latitude in calendar management,” and such

decisions are reviewed “under a highly deferential standard of

abuse of discretion.”    Morgan v. Gonzales, 

, 551

(2d Cir. 2006).    An IJ “may grant a motion for continuance for

good cause shown,” 8 C.F.R. § 1003.29, and abuses her

discretion in denying a continuance only if “(1) h[er] decision


1
  Umarov does not challenge the agency’s denial of his application
for asylum, and accordingly, he has waived that issue. See Yueqing
Zhang v. Gonzales, 

, 545 n.7 (2d Cir. 2005).
                                5
rests on an error of law (such as application of the wrong legal

principle) or a clearly erroneous factual finding or (2) h[er]

decision——though not necessarily the product of a legal error

or a clearly erroneous factual finding——cannot be located

within the range of permissible decisions,” 

(internal quotation marks, brackets, and citation

omitted).

    Moreover, “[t]o establish a violation of due process, an

alien must show that []he was denied a full and fair opportunity

to present h[is] claims or that [he was] otherwise deprived …

of fundamental fairness.”   Burger v. Gonzales, 

,

134 (2d Cir. 2007) (internal quotation marks and citations

omitted).   “Parties claiming denial of due process in

immigration cases must, in order to prevail, allege some

cognizable prejudice fairly attributable to the challenged

process.”   Garcia-Villeda v. Mukasey, 

, 149 (2d

Cir. 2008) (internal quotation marks and citations omitted).

    The IJ provided Umarov a full and fair opportunity to

present his sister’s testimony.    Umarov was in proceedings

before the immigration court for almost four years.   At a June

                               6
2011 hearing, the IJ scheduled an individual hearing for March

1, 2012, and directed Umarov, who was present and represented

by counsel, to file a witness list by February 1, 2012.   Umarov,

however, failed to submit a witness list in advance of that

deadline.   Rather, he waited until the day of his hearing to

file a motion requesting additional time to prepare such a list.

By doing so, Umarov violated the Immigration Court Practice

Manual (“Manual”), which provides that “filings must be

submitted at least fifteen (15) days in advance of the hearing,”

Manual, § 3.1(b)(ii)(A), and warns that “[t]he untimely

submission of a filing may have serious consequences, . . .

[specifically,] if a witness list is untimely, the witnesses

on the list are barred from testifying,” 

Under these circumstances, the IJ was not required to delay

proceedings to provide Umarov additional time to obtain and

present evidence that had been available for years (his sister

having resided in the United States since 2002).    See 

; cf. Chuilu Liu v. Holder, 

, 198

(2d Cir. 2009) (providing that “the alien bears the ultimate




                               7
burden of introducing such evidence without prompting from the

IJ.”).

     Umarov also failed to demonstrate that he was prejudiced

as a result of the IJ’s denial of his motion.   As the BIA noted,

he has not indicated how his sister’s testimony would have

rehabilitated his credibility in light of his submission of a

false asylum application.   See 

;

cf. Rabiu v. INS, 

, 882 (2d Cir. 1994) (“In order

for [petitioner] to show that his attorney’s failure to file

caused him actual prejudice, he must make a prima facie showing

that he would have been eligible for the relief and that he could

have made a strong showing in support of his application.”).

Accordingly, the IJ did not abuse her discretion or violate

Umarov’s due process rights in denying him a continuance.    See

; 

;

.

     For the foregoing reasons, the petition for review is

DENIED.   As we have completed our review, the pending motion

for a stay of removal in this petition is DENI ED as moot.

                              FOR THE COURT:
                              Catherine O=Hagan Wolfe, Clerk
                               8