     17-1774
     Cao v. Barr
                                                                                   BIA
                                                                               Lamb, IJ
                                                                           A200 749 685
                        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.

 1        At a stated term of the United States Court of Appeals
 2   for the Second Circuit, held at the Thurgood Marshall
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 27th day of August, two thousand nineteen.
 5
 6   PRESENT:
 7            JOHN M. WALKER, JR.,
 8            PETER W. HALL,
 9            RAYMOND J. LOHIER, JR.,
10                 Circuit Judges.
11   _____________________________________
12
13   SU HUA CAO,
14            Petitioner,
15
16                 v.                                            17-1774
17                                                               NAC
18   WILLIAM P. BARR, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                  Gary J. Yerman, Esq., Yerman &
24                                    Jia, LLC, New York, NY.
25
26   FOR RESPONDENT:                  Chad A. Readler, Acting Assistant
27                                    Attorney General; Andrew N.
28                                    O’Malley, Senior Litigation
29                                    Counsel; Victoria M. Braga, Trial
30                                    Attorney, Office of Immigration
31                                    Litigation, United States
32                                    Department of Justice, Washington,
33                                    DC.
1        UPON DUE CONSIDERATION of this petition for review of a

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

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

4    is DISMISSED.

5        Petitioner Sua Hua Cao, a native and citizen of the

6    People’s Republic of China, seeks review of an October 21,

7    2016 decision of the BIA affirming a March 30, 2016 decision

8    of an Immigration Judge (“IJ”) denying Cao’s application for

9    asylum as untimely.    In re Su Hua Cao, No. A 200 749 685

10   (B.I.A. Oct. 21, 2016), aff’g No. A 200 749 685 (Immig. Ct.

11   N.Y. City Mar. 30, 2016).   We assume the parties’ familiarity

12   with the underlying facts and procedural history in this case.

13       Under the circumstances of this case, we have reviewed

14   the IJ’s decision as supplemented by the BIA.    See Yan Chen

15   v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).

16       An asylum applicant must “demonstrate[] by clear and

17   convincing evidence that the application has been filed

18   within 1 year after the date of the alien’s arrival in the

19   United States,” absent exceptions not relevant here.    8

20   U.S.C. § 1158(a)(2)(B), (D) (providing exceptions for

21   changed or extraordinary circumstances).   Our jurisdiction

22   to review an IJ’s determination regarding the timeliness of


                                    2
1    an asylum application is limited to constitutional claims

2    and questions of law.     8 U.S.C. §§ 1158(a)(3),

3    1252(a)(2)(D).     When assessing jurisdiction, we “study the

4    arguments asserted . . . to determine, regardless of the

5    rhetoric employed in the petition, whether it merely

6    quarrels over the correctness of the factual findings or

7    justification for the discretionary choices, in which case

8    the court would lack jurisdiction, or whether it instead

9    raises a ‘constitutional claim’ or ‘question of law,’ in

10   which case the court could exercise jurisdiction to review

11   those particular issues.”       Xiao Ji Chen v. U.S. Dep’t of

12   Justice, 471 F.3d 315, 329 (2d Cir. 2006).          For

13   jurisdiction to attach, however, such a claim         must be

14   colorable.   Barco-Sandoval v. Gonzales, 516 F.3d 35, 40–41

15   (2d Cir. 2008).    We review constitutional claims de novo.

16   Pierre v. Holder, 588 F.3d 767, 772 (2d Cir. 2009).

17       Cao   argues   that   the   agency   violated   due   process   by

18   relying on an incompetent interpreter to conclude that her

19   application was untimely.       “Aliens, of course, are entitled

20   to due process” and may be removed “only after proceedings

21   conforming to traditional standards of fairness.”         Dong Zhong

22   Zheng v. Mukasey, 552 F.3d 277, 286 (2d Cir. 2009) (internal


                                       3
1    quotation marks and citation omitted).                   “[T]he failure of an

2    IJ to give any consideration to . . . an undeniably probative

3    piece of evidence amounts to a denial of the traditional

4    standards      of   fairness       that    due     process     demands.”          Id.

5    Moreover, “[t]he right of a person facing deportation to

6    participate meaningfully in the deportation proceedings by

7    having them competently translated into a language he or she

8    can understand is fundamental.”                    Hartooni v. INS, 21 F.3d

9    336,     340   (9th       Cir.    1994).           However,        a    petitioner’s

10   “talismanic      invocation       of   the     language       of       ‘due   process’

11   itself    [does     not]    suffice[]         to   provide    this       Court   with

12   jurisdiction.”           Saloum v. U.S. Citizenship & Immig. Servs.,

13   437 F.3d 238, 243 (2d Cir. 2006).

14          Cao’s due process challenge, premised on an incompetent

15   translator, is not colorable and therefore is insufficient to

16   permit our review of her petition.                   See id.; see also Jin Jin

17   Long v. Holder, 620 F.3d 162, 165 n.3 (2d Cir. 2010) (finding

18   no jurisdiction where argument challenges factual finding).

19   The    parties      do    not    dispute      that    Cao    filed       her   asylum

20   application on July 15, 2010.                      Cao represented that she

21   entered the United States in February 2010.                             In assessing

22   timeliness, the agency noted that Cao did not sufficiently


                                               4
1    corroborate her testimony as to her date of entry—which

2    conflicted with her testimony that she first met her husband

3    in the United States 11 months before their April 2010

4    marriage.    Cao asserts that she did not testify that she met

5    her husband 11 months prior to their marriage—but rather only

6    one month earlier—and that her testimony was consistent with

7    a February 2010 date of entry.        Moreover, Cao contends that

8    any   inconsistency   in   her   testimony   was   attributable   to

9    interpreter error, which the IJ erroneously relied on despite

10   her attorney’s objections during her hearing.

11         The hearing transcript reflects that there was confusion

12   regarding when Cao first met her husband.            When asked on

13   cross examination how long she had known her husband before

14   they married, Cao responded 11 months.             The Government’s

15   attorney then asked Cao to explain how she could have first

16   met her husband in the United States 11 months before their

17   marriage in April 2010 if her date of entry was in February

18   2010.   Cao then stated that she met him in March 2010 and

19   denied saying 11 months, which prompted a colloquy between

20   the IJ and the interpreter.       The interpreter explained that

21   Cao’s testimony sounded like 11 months and denied making a

22   mistake.    After listening to a recording of Cao’s testimony,


                                       5
1    the interpreter again confirmed that Cao said 11 months.   The

2    interpreter clarified that Cao first said 11 months but said

3    one month in subsequent testimony.   Cao offers no independent

4    evidence that her testimony was erroneously interpreted.    At

5    bottom, Cao’s due process challenge amounts to a factual

6    dispute concerning an inconsistency in her testimony that we

7    lack jurisdiction to consider.    See 8 U.S.C. §§ 1158(a)(3),

8    1252(a)(2)(D); see also Jin Jin Long, 620 F.3d at 165 n.3

9        For the foregoing reasons, the petition for review is

10   DISMISSED.

11                               FOR THE COURT:
12                               Catherine O’Hagan Wolfe,
13                               Clerk of Court
14




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