Balde v. Holder , 436 F. App'x 44 ( 2011 )

10-5023-ag
Balde v. Holder
BIA
Bukszpan, IJ
A077 563 400
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 25th day of October, two thousand eleven.
PRESENT:
JOSÉ A. CABRANES,
DEBRA ANN LIVINGSTON,
GERARD E. LYNCH,
Circuit Judges.
______________________________________
MAMADU A. BALDE,
Petitioner,
v. 10-5023-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
______________________________________
FOR PETITIONER: Erin Edward VanValkenburg,
Pittsburgh, PA
FOR RESPONDENT: Tony West, Assistant Attorney
General; Linda S. Wernery, Assistant
Director; Gregory M. Kelch,
Attorney, Civil Division, Office of
Immigration Litigation, U.S.
Department of Justice, Washington,
DC
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 DISMISSED in part and DENIED in part.
Petitioner Mamadu A. Balde, a native and citizen of
Sierra Leone, seeks review of an October 29, 2010, decision
of the BIA affirming the November 18, 2008, decision of
Immigration Judge (“IJ”) Joanna Miller Bukszpan denying his
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Mamadu
A. Balde, No. A077 563 400 (B.I.A. Oct. 29, 2010), aff’g No.
A077 563 400 (Immig. Ct. N.Y. City Nov. 18, 2008). We
assume the parties’ familiarity with the underlying facts
and procedural history of the case.
Under the circumstances of this case, we have
considered both the IJ’s and the BIA’s opinions. Zaman v.
Mukasey, 514 F.3d 233, 237 (2d Cir. 2008). “The substantial
evidence standard of review applies, and we uphold the IJ’s
factual findings if they are supported by reasonable,
substantial and probative evidence in the record.” Yanqin
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Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009) (internal
quotation marks and citations omitted). “By contrast, we
review de novo questions of law and the BIA’s application of
law to undisputed fact.” Id. (internal quotation marks and
brackets omitted). See also 8 U.S.C. § 1252(b)(4)(B).
As an initial matter, we lack jurisdiction to review
the agency’s pretermission of Balde’s asylum application, as
8 U.S.C. § 1158(a)(3) provides that no court shall have
jurisdiction to review the agency’s finding that an asylum
application was untimely under 8 U.S.C. § 1158(a)(2)(B).
Although we retain jurisdiction to review constitutional
claims and “questions of law,” 8 U.S.C. § 1252(a)(2)(D),
Balde disputes only the correctness of the IJ’s factual
finding regarding his date of arrival; thus, he has failed
to raise a question of law over which we could exercise
jurisdiction, and we dismiss the petition for review insofar
as it challenges the finding of untimeliness. See Xiao Ji
Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 328-29 (2d Cir.
2006).
With respect to withholding of removal and CAT relief,
substantial evidence supports the agency’s adverse
credibility determination. The IJ reasonably relied on
inconsistencies between Balde’s written application and his
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testimony regarding when he entered the United States. See
Majidi v. Gonzales, 430 F.3d 77, 81 (2d Cir. 2005).
Although Balde’s written application indicated that he had
never entered the United States prior to 1999, he conceded
during his hearing that he was arrested in the United States
in 1997. Moreover, a reasonable factfinder would not have
been compelled to credit Balde’s explanations for this
inconsistency. See id. at 80-81. Having questioned Balde’s
credibility, the IJ reasonably relied further on Balde’s
failure to provide reliable evidence corroborating his
assertion that he returned to Sierra Leone in 1997. See
Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007)
(recognizing that an applicant’s failure to corroborate his
testimony may bear on credibility, either because the
absence of particular corroborating evidence is viewed as
suspicious, or because the absence of corroboration in
general makes an applicant unable to rehabilitate testimony
that has already been called into question). Because the
claims for withholding of removal and CAT relief were based
on the same factual predicate, the well-supported adverse
credibility finding warranted denial of both forms of
relief. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.
2006).
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For the foregoing reasons, the petition for review is
DISMISSED in part and DENIED in part. As we have completed
our review, any stay of removal that the Court previously
granted in this petition is VACATED, and any pending motion
for a stay of removal in this petition is DISMISSED as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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