         12-962
         Li v. Holder
                                                                                       BIA
                                                                                    Bain, IJ
                                                                               A089 913 217
                         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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 23rd day of July, two thousand thirteen.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                     Chief Judge,
 9                JON O. NEWMAN,
10                DEBRA ANN LIVINGSTON,
11                     Circuit Judges.
12       _____________________________________
13
14       ZHAO DI LI,
15                Petitioner,
16                                                              12-962
17                      v.                                      NAC
18
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _____________________________________
23
24       FOR PETITIONER:               Yevgeny Samokhleb, New York, New
25                                     York.
26
27       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
28                                     Attorney General; Jennifer P.
29                                     Levings, Senior Litigation Counsel;
 1                          Carmel A. Morgan, Trial Attorney,
 2                          Office of Immigration Litigation,
 3                          Civil Division, United States
 4                          Department of Justice, Washington,
 5                          D.C.
 6
 7        UPON DUE CONSIDERATION of this petition for review of a
 8   Board of Immigration Appeals (“BIA”) decision, it is hereby
 9   ORDERED, ADJUDGED, AND DECREED that the petition for review
10   is DISMISSED as to petitioner’s asylum claim, and DENIED as
11   to petitioner’s claims for withholding of removal and relief
12   under the Convention Against Torture.
13
14        Petitioner, Zhao Di Li, a native and citizen of the
15   People’s Republic of China, seeks review of a February 14,
16   2012, decision of the BIA affirming the January 13, 2010,
17   decision of Immigration Judge (“IJ”) pretermitting her
18   asylum application and denying her application for
19   withholding of removal and relief under the Convention
20   Against Torture (“CAT”). In re Zhao Di Li, No. A089 913 217
21   (B.I.A. Feb. 14, 2012), aff’g No. A089 913 217 (Immig. Ct.
22   N.Y. City Jan. 13, 2010). We assume the parties’
23   familiarity with the underlying facts and procedural history
24   of the case.
25
26        To be eligible for asylum, an alien must show, by clear
27   and convincing evidence, that the asylum application was
28   filed “within 1 year after the date of the alien’s arrival
29   in the United States.” 8 U.S.C. § 1158(a)(2)(B). Li filed
30   her asylum application in September 2008, and she claims
31   that she arrived in January 2008. But Li is unable to
32   corroborate her arrival date because her passport and travel
33   documents were allegedly confiscated by the snakehead that
34   arranged her entry.
35
36        The IJ ruled: “If the respondent’s testimony were
37   believable, then her application would be deemed timely.
38   However, the respondent has not provided sufficient
39   corroborative information to establish that the application
40   was timely filed.” CAR59. The IJ emphasized that Li had no
41   travel documents despite her “very elaborate and well
42   planned trip from China,” and found that the one witness she
43   presented to corroborate her claim “was not a very credible
44   witness.” CAR59-60. Another witness, with whom Li

                                  2
 1   supposedly stayed upon arrival in the United States, was
 2   reasonably available to testify but refused to do so.
 3   CAR61-62. The IJ therefore concluded that Li had failed to
 4   corroborate her arrival date despite reasonably available
 5   evidence, and therefore pretermitted her asylum application.
 6   The BIA affirmed this determination. CAR4.
 7
 8        Li argues that the IJ erred in pretermitting her asylum
 9   application by failing to determine that the requested
10   corroborating evidence--travel documents and additional
11   witness testimony--was reasonably available. Under 8 U.S.C.
12   § 1158(a)(3), “[n]o court shall have jurisdiction to review
13   any determination of the Attorney General” as to the
14   timeliness of an asylum application, including the
15   determinations of the IJ and the BIA. Notwithstanding this
16   provision, we retain jurisdiction to review “constitutional
17   claims or questions of law” raised in a petition for review.
18   8 U.S.C. § 1252(a)(2)(D). To assess whether a question of
19   fact or law is at issue, we are to “study the arguments
20   asserted,” and “determine, regardless of the rhetoric
21   employed in the petition, whether it merely quarrels over
22   the correctness of the factual findings.” Xiao Ji Chen v.
23   U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir. 2006).
24   “[W]hen analysis of the arguments raised by the petition for
25   judicial review reveals that they do not in fact raise any
26   reviewable issues, the petitioner cannot overcome this
27   deficiency and secure review by using the rhetoric of a
28   ‘constitutional claim’ or ‘question of law’ to disguise what
29   is essentially a quarrel about fact-finding . . . .” Id. at
30   329-30.
31
32        Li disputes the IJ’s credibility determinations,
33   arguing that: [i] because her testimony “was consistent,”
34   her “testimony should be considered credible,” Li Br. 10;
35   [ii] her explanation for why she lacked documents
36   corroborating her arrival date (i.e., because the
37   documentation was confiscated by the smuggler) “was not an
38   unreasonable explanation for why such evidence was
39   reasonably unavailable to Petitioner,” Li Br. 10; and [iii]
40   “[t]he BIA and [IJ] further erred in not crediting the other
41   evidence submitted by Petitioner in corroboration of her
42   claim.” Li Br. 11. These issues involving the IJ’s
43   credibility determinations and the IJ’s findings as to Li’s
44   lack of corroborating evidence are questions of fact that we
45   lack jurisdiction to review.

                                  3
 1
 2        For the foregoing reasons, the petition for review is
 3   DISMISSED as to Li’s asylum claim. Finding no merit in Li’s
 4   arguments regarding withholding of removal and relief under
 5   the Convention Against Torture, the petition for review is
 6   DENIED as to those other arguments. As we have completed our
 7   review, any stay of removal that the Court previously granted
 8   in this petition is VACATED, and any pending motion for a stay
 9   of removal in this petition is DISMISSED as moot. Any pending
10   request for oral argument in this petition is DENIED in
11   accordance with Federal Rule of Appellate Procedure 34(a)(2),
12   and Second Circuit Local Rule 34.1(b).
13
14                               FOR THE COURT:
15                               Catherine O’Hagan Wolfe, Clerk
16
17




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