    15-529
    Tapsoba v. Sessions
                                                                                       BIA
                                                                                  Nelson, IJ
                                                                               A087 633 004
                           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
    5th day of April, two thousand seventeen.

    PRESENT:
             PIERRE N. LEVAL,
             REENA RAGGI,
             RAYMOND J. LOHIER, JR.,
                  Circuit Judges.
    _____________________________________

    OUSMANE TAPSOBA,
             Petitioner,

                      v.                                             15-529
                                                                     NAC
    JEFFERSON B. SESSIONS III, UNITED
    STATES ATTORNEY GENERAL,*
             Respondent.
    _____________________________________

    FOR PETITIONER:                      Gary J. Yerman, Esq., New York,
                                         New York.

    FOR RESPONDENT:                      Benjamin C. Mizer, Principal Deputy
                                         Assistant Attorney General; Terri J.

    * Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
    Jefferson B. Sessions III is substituted for Loretta E. Lynch
    as Respondent.
                           Scadron, Assistant Director; Wendy
                           Benner-León, Trial Attorney, Office
                           of Immigration Litigation, United
                           States 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 Ousmane Tapsoba, a native and citizen of Burkina

Faso, seeks review of a January 30, 2015 decision of the BIA

affirming an Immigration Judge’s (“IJ’s”) May 1, 2013 denial

of his application for asylum, withholding of removal, and

relief under the Convention Against Torture (“CAT”).    See In

re Ousmane Tapsoba, No. A087 633 004 (B.I.A. Jan. 30, 2015),

aff’g No. A087 633 004 (Immig. Ct. N.Y.C. May 1, 2013).

    Where, as here, the BIA does not expressly “adopt” the IJ’s

decision, but closely tracks its reasoning, we review both the

BIA’s and IJ’s decisions “for the sake of completeness,”

Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.

2006), applying well-established standards of review, see 8

U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162,

165–66 (2d Cir. 2008).   In doing so, we assume the parties’

familiarity with the underlying facts and procedural history

of this case.
                              2
  I.     One-Year Jurisdictional Bar

       Under 8 U.S.C. § 1158(a)(3), we lack jurisdiction to review

the agency's factual findings regarding the timeliness of an

asylum     application,    see     id.       §   1158(a)(2)(B),    but   retain

jurisdiction to review constitutional claims or questions of

law, see id. § 1252(a)(2)(D); Weinong Lin v. Holder, 763 F.3d

244, 246–47 (2d Cir. 2014).           Tapsoba argues legal error in the

agency’s determination that “extraordinary circumstances” were

not presented by his belief that a third party to whom he had

provided identification documents, but whom he did not contact

for more than one year thereafter, would file his application

for him.       We identify no legal error in the agency’s conclusion

that any such reliance was not reasonable. See 8 C.F.R.

§ 1208.4(a)(5) (describing “extraordinary circumstances” to

include serious illness, legal                   disability, or documented

ineffective       assistance     of   counsel       “directly     related”   to

untimeliness).         We therefore lack jurisdiction to review

Tapsoba’s asylum claim.

  II. Withholding of Removal and CAT

       While    we   nonetheless      possess      jurisdiction     to   review

Tapsoba’s withholding of removal and CAT claims, see Liu v.

I.N.S., 508 F.3d 716, 722 (2d Cir. 2007), we identify no error

in the agency’s conclusion that Tapsoba failed to meet his
                                         3
burden of proof on these claims.          “While consistent, detailed,

and credible testimony may be sufficient to carry the alien’s

burden, evidence corroborating his story, or an explanation for

its absence, may be required where it would reasonably be

expected.”    Diallo v. INS, 232 F.3d 279, 285 (2d Cir. 2000).

“Where the trier of fact determines that the applicant should

provide   evidence       that   corroborates      otherwise       credible

testimony, such evidence must be provided unless the applicant

does not have the evidence and cannot reasonably obtain the

evidence.”    See Chuilu Liu v. Holder, 575 F.3d 193, 197 (2d Cir.

2009);    8     U.S.C.     §§    1158(b)(1)(B),          1129a(c)(4)(B),

1231(b)(3)(C).     In denying relief for lack of corroboration,

an IJ should identify specific pieces of missing documentation,

explain why the documentation was reasonably available, provide

the alien with an opportunity to explain the omission, and

assess an explanation that is given.         See Chuilu Liu v. Holder,

575 F.3d at 198.    “No court shall reverse a determination made

by a trier of fact with respect to the availability of

corroborating evidence . . . unless the court finds . . . that

a reasonable trier of fact is compelled to conclude that such

corroborating      evidence     is       unavailable.”        8     U.S.C.

§ 1252(b)(4).


                                     4
    Even assuming that Tapsoba testified credibly, the IJ

reasonably concluded that he failed adequately to corroborate

his claims.   Tapsoba testified that he was arrested twice for

his political activities as the spokesman of his local merchant

association, detained for several days or weeks at a time, and

sustained injuries from which he continues to suffer.    Letters

from his mother and brother, however, mention neither his

alleged arrests nor his alleged injuries.      When asked about

this discrepancy, Tapsoba could not provide an explanation.

Nor did he provide any medical documentation of his injuries

or evidence of his role as a merchant-association spokesperson.

In sum, Tapsoba submitted no evidence to corroborate his central

claims of past persecution in Burkina Faso or the political

activities that allegedly made him a target for persecution.

    The IJ specifically identified the types of documents that

could have corroborated Tapsoba’s testimony and questioned him

about the absence of such documentation.        Given Tapsoba’s

failure to explain why he did not obtain that evidence, we cannot

conclude that the record compels a conclusion that the evidence

was unavailable.   See 8 U.S.C. § 1252(b)(4).

    Because this corroboration determination is dispositive,

we need not reach the agency’s alternative rulings, see INS v.

Bagamasbad, 429 U.S. 24, 25 (1976), to conclude that the
                               5
agency’s denial of withholding of removal and CAT relief was

not in error, see Chuilu Liu, 575 F.3d at 198-99; see also Paul

v. Gonzales, 444 F.3d 148, 155-57 (2d Cir. 2006).

    For the foregoing reasons, the petition for review is

DENIED and the pending motion for a stay of removal is DISMISSED

as moot.

                        FOR THE COURT:
                        Catherine O’Hagan Wolfe, Clerk of Court




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