    13-2583
    Diallo v. Holder
                                                                                   BIA
                                                                              Sichel, IJ
                                                                          A093 409 915
                        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 Thurgood Marshall United
    States Courthouse, 40 Foley Square, in the City of New York,
    on the 18th day of September, two thousand fourteen.

    PRESENT:
             JON O. NEWMAN,
             JOHN M. WALKER, JR.,
             RICHARD C. WESLEY,
                  Circuit Judges.
    _____________________________________

    MADIOU DIALLO,
             Petitioner,

                       v.                                  13-2583
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:               Gary J. Yerman, Yerman & Associates,
                                  LLC, New York, NY.

    FOR RESPONDENT:               Stuart F. Delery, Assistant Attorney
                                  General; Keith I. McManus, Senior
                                  Litigation Counsel; Lindsay M.
                                  Murphy, 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 DISMISSED in part and DENIED in part.

    Petitioner Madiou Diallo, a native and citizen of

Guinea, seeks review of a June 12, 2013 order of the BIA,

affirming the March 16, 2012 decision of an Immigration

Judge (“IJ”), which pretermitted asylum and denied

withholding of removal and relief under the Convention

Against Torture (“CAT”).   In re Madiou Diallo, No. A093 409

915 (B.I.A. June 12, 2013), aff’g No. A093 409 915 (Immig.

Ct. New York City Mar. 16, 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

decisions of both the IJ and the BIA.   See Yun-Zui Guan v.

Gonzales, 432 F.3d 391, 394 (2d Cir. 2005) (per curiam).

The applicable standards of review are well established.

See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v.

Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008) (per curiam).

Pretermission of Asylum

    Title 8, Section 1158(a)(3) of the United States Code

provides that no court shall have jurisdiction to review the

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agency’s finding that an asylum application was untimely

under 8 U.S.C. § 1158(a)(2)(B).       However, we retain

jurisdiction to review constitutional claims and questions

of law.   8 U.S.C. § 1252(a)(2)(D).

    Here, we lack jurisdiction to review the agency’s

pretermission of asylum because Diallo merely “quarrels over

the correctness of the [agency’s] factual finding[]” that he

did not return to Guinea in 2004 and reenter the United

States in 2007.   Xiao Ji Chen v. U.S. Dep’t of Justice, 471

F.3d 315, 329 (2d Cir. 2006).       Diallo contends that the

agency erred by finding his witness credible but concluding

that the witness’s testimony was insufficient to establish

the timeliness of his application.       However, as the IJ

explained, the witness did not have any firsthand knowledge

of Diallo’s whereabouts between 2004 and 2007.       Diallo’s

assertion that the IJ held him to an overly stringent burden

by requiring an eye witnesses to establish his return to

Guinea and reentry to the United States is incorrect.          The

IJ did not pretermit Diallo’s asylum application because he

did not produce an eye witness; she found that Diallo failed

to establish the timeliness of his application because he

testified inconsistently about whether his passport was


                                3
stamped when he returned to Guinea and offered no tickets,

boarding passes, stamps in his passport, or airline

confirmations to establish that he ever flew back as he

testified that he did.    Diallo has waived review of these

findings by failing to contest them in this Court.       See

Yueqing Zhang v. Gonzales, 426 F.3d 540, 542 n.1 (2d Cir.

2005).    Diallo’s suggestion that the agency erred by

assessing the credibly of his testimony, in determining

whether that testimony constituted clear and convincing

evidence, is unsupported and clearly without merit.

Withholding of Removal

    For applications such as Diallo’s, which are governed

by the REAL ID Act, the agency may base a credibility

finding on an applicant’s demeanor, the plausibility of his

account, and inconsistencies in his statements, without

regard to whether they go “to the heart of the applicant’s

claim.”    8 U.S.C. § 1158(b)(1)(B)(iii).   “We defer therefore

to an IJ’s credibility determination unless, from the

totality of the circumstances, it is plain that no

reasonable fact-finder could make such an adverse

credibility ruling.”     Xiu Xia Lin, 534 F.3d at 167.




                                4
    Diallo’s criticism of the BIA for failing to explicitly

discuss the underlying bases for the IJ’s credibility

determination is misplaced; the BIA did not explicitly

discuss the underlying bases because Diallo did not

challenge them on appeal.     In addition to the statutory,

jurisdictional requirement that petitioners exhaust each

category of relief they seek, 8 U.S.C. § 1252(d)(1),

petitioners must raise specific issues with the BIA before

raising them in this Court.     See Foster v. INS, 376 F.3d 75,

77-78 (2d Cir. 2004).   Issue exhaustion is mandatory: “If[,

as here,] the government points out to the appeals court

that an issue relied on before that court by a petitioner

was not properly raised below, the court must decline to

consider that issue, except in [] extraordinary situations.”

Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 107 n.1

(2d Cir. 2007).   We therefore decline to consider Diallo’s

unexhausted challenges to the “findings that informed the

IJ’s adverse credibility determination.”     Shunfu Li v.

Mukasey, 529 F.3d 141, 146 (2d Cir. 2008).

CAT Relief

    Lastly, we lack jurisdiction to review the denial of

CAT relief because Diallo did not contest it before the BIA.

In contrast to issue exhaustion, the failure to contest the
                                5
denial of a category of relief is a jurisdictional defect.

Karaj v. Gonzales, 462 F.3d 113, 119 (2d Cir. 2006) (“The

failure to seek review of the CAT claim deprives us of

jurisdiction.”).

    For the foregoing reasons, the petition for review is

DISMISSED in part, insofar as it challenges the

pretermission of asylum and denial of CAT relief, and DENIED

in part, as it relates to the denial of withholding of

removal.   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.    Any pending request for

oral argument in this petition is DENIED in accordance with

Federal Rule of Appellate Procedure 34(a)(2), and Second

Circuit Local Rule 34.1(b).

                              FOR THE COURT:
                              Catherine O’Hagan Wolfe, Clerk




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