         11-4985                                                                       BIA
         Balayaba v. Holder                                                       Rohan, IJ
                                                                               A079 609 502
                               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 Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 26th day of September, two thousand twelve.
 5
 6       PRESENT:
 7                RALPH K. WINTER,
 8                JOSEPH M. McLAUGHLIN,
 9                PETER W. HALL,
10                     Circuit Judges.
11       _____________________________________
12
13       FOUSSEYNI BALAYABA,
14                Petitioner,
15
16                            v.                                11-4985
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:                Gary J. Yerman, New York, New York.
24
25       FOR RESPONDENT:                Stuart F. Delery, Acting Assistant
26                                      Attorney General; John S. Hogan,
27                                      Senior Litigation Counsel; Michael
28                                      C. Heyse, Trial Attorney, Office of
29                                      Immigration Litigation, United
30                                      States Department of Justice,
31                                      Washington, D.C.
 1
 2       UPON DUE CONSIDERATION of this petition for review of a

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

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

 5   is DISMISSED in part and DENIED in part.

 6       Fousseyni Balayaba, a native and citizen of Mauritania,

 7   seeks review of a November 4, 2011, order of the BIA

 8   affirming the October 26, 2009, decision of Immigration

 9   Judge (“IJ”) Patricia A. Rohan, which pretermitted his

10   application for asylum as untimely, and denied his

11   applications for withholding of removal and relief under the

12   Convention Against Torture (“CAT”).    In re Fousseyni

13   Balayaba, No. A079 609 502 (B.I.A. Nov. 4, 2011), aff’g No.

14   A079 609 502 (Immig. Ct. N.Y. City Oct. 26, 2009).     We

15   assume the parties’ familiarity with the underlying facts

16   and procedural history in this case.

17       Under the circumstances of this case, we have reviewed

18   the IJ’s decision as modified by the BIA decision.       See Xue

19   Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d

20   Cir. 2005).    The applicable standards of review are well-

21   established.    See 8 U.S.C. § 1252(b)(4)(B); see also Shi Jie

22   Ge v. Holder, 588 F.3d 90, 93-94 (2d Cir. 2009).

23

24

                                    2
 1   I. Asylum

 2       Under 8 U.S.C. § 1158(a)(3), no court shall have

 3   jurisdiction to review the agency’s finding that an asylum

 4   application was untimely under 8 U.S.C. § 1158(a)(2)(B).

 5   Although we retain jurisdiction to review constitutional

 6   claims and questions of law, 8 U.S.C. § 1252(a)(2)(D), a

 7   question of law is not implicated “when the petition for

 8   review essentially disputes the correctness of an IJ’s fact-

 9   finding or the wisdom of his exercise of discretion,” Xiao

10   Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir.

11   2006).    Here, Balayaba challenges the agency’s factual

12   determination and exercise of discretion that he did not

13   arrive in the United States in September 2001; thus, this

14   Court lacks jurisdiction to review that determination.     Id.

15   at 329.

16   II. Withholding of Removal

17       Balayaba challenges the agency’s denial of withholding

18   of removal based on an adverse credibility determination,

19   including the finding that he failed to corroborate his

20   claim.    The IJ determined that Balayaba failed to provide

21   credible testimony based on inconsistencies between his

22   testimony and his asylum application regarding his departure

23   from Senegal and the manner of his arrival in the United

                                    3
 1   States, an omission in his original asylum application

 2   regarding his alleged mistreatment in Mauritania, and his

 3   failure to provide reasonably available corroboration.    The

 4   BIA modified the IJ’s decision, however, finding only that

 5   “the weaknesses in [Balayaba]’s case gave the [IJ] a

 6   legitimate reason to require corroborating evidence.”

 7        Contrary to Balayaba’s contention, the agency’s

 8   adverse credibility determination is supported by

 9   substantial evidence because Balayaba failed to provide

10   testimony or a statement from his cousin, who was available

11   and had the unique opportunity to corroborate each component

12   of his testimony that had been called into question.     See

13   Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007)

14   (“the absence of corroboration in general makes an applicant

15   unable to rehabilitate testimony that has already been

16   called into question”).

17       To the extent the BIA concluded that Balayaba failed to

18   meet his burden of proof for withholding of removal based on

19   a lack of corroboration, that conclusion is also supported

20   by substantial evidence because the IJ confirmed that the

21   testimony or statement from Balayaba’s cousin was reasonably

22   available, provided Balayaba an opportunity to explain his

23   failure to produce that evidence, and reasonably found


                                  4
 1   Balayaba’s explanation that his cousin simply “couldn’t

 2   come” to be inadequate to compel a contrary conclusion.     See

 3   Jin Shui Qiu v. Ashcroft, 329 F.3d 140, 153 (2d Cir. 2003),

 4   overruled on other grounds by Shi Liang Lin v. U.S. Dep’t of

 5   Justice, 494 F.3d 296 (2d Cir. 2007); Diallo v. INS, 232

 6   F.3d 279, 288-90 (2d Cir. 2000).

 7   III. CAT Relief

 8       Finally, because Balayaba did not raise his CAT claim

 9   before the BIA, this Court lacks jurisdiction to consider

10   the claim.   See 8 U.S.C. § 1252(d)(1); see also Karaj v.

11   Gonzales, 462 F.3d 113, 119 (2d Cir. 2006).

12       For the foregoing reasons, the petition for review is

13   DISMISSED in part and DENIED in part.   As we have completed

14   our review, any stay of removal that the Court previously

15   granted in this petition is VACATED, and any pending motion

16   for a stay of removal in this petition is DISMISSED as moot.

17   Any pending request for oral argument in this petition is

18   DENIED in accordance with Federal Rule of Appellate

19   Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).

20                               FOR THE COURT:
21                               Catherine O’Hagan Wolfe, Clerk
22
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