    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
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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



                             2
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

                                3
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).

                               4
    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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