15-529
Tapsoba v. Sessions
BIA
Nelson, IJ
A087 633 004
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.
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
5th day of April, two thousand seventeen.
PRESENT:
PIERRE N. LEVAL,
REENA RAGGI,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_____________________________________
OUSMANE TAPSOBA,
Petitioner,
v. 15-529
NAC
JEFFERSON B. SESSIONS III, UNITED
STATES ATTORNEY GENERAL,*
Respondent.
_____________________________________
FOR PETITIONER: Gary J. Yerman, Esq., New York,
New York.
FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
Assistant Attorney General; Terri J.
* Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
Jefferson B. Sessions III is substituted for Loretta E. Lynch
as Respondent.
Scadron, Assistant Director; Wendy
Benner-León, 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
DENIED.
Petitioner Ousmane Tapsoba, a native and citizen of Burkina
Faso, seeks review of a January 30, 2015 decision of the BIA
affirming an Immigration Judge’s (“IJ’s”) May 1, 2013 denial
of his application for asylum, withholding of removal, and
relief under the Convention Against Torture (“CAT”). See In
re Ousmane Tapsoba, No. A087 633 004 (B.I.A. Jan. 30, 2015),
aff’g No. A087 633 004 (Immig. Ct. N.Y.C. May 1, 2013).
Where, as here, the BIA does not expressly “adopt” the IJ’s
decision, but closely tracks its reasoning, we review both the
BIA’s and IJ’s decisions “for the sake of completeness,”
Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.
2006), applying well-established standards of review, see 8
U.S.C. § 1252(b)(4)(B); Xiu Xia Lin v. Mukasey, 534 F.3d 162,
165–66 (2d Cir. 2008). In doing so, we assume the parties’
familiarity with the underlying facts and procedural history
of this case.
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I. One-Year Jurisdictional Bar
Under 8 U.S.C. § 1158(a)(3), we lack jurisdiction to review
the agency's factual findings regarding the timeliness of an
asylum application, see id. § 1158(a)(2)(B), but retain
jurisdiction to review constitutional claims or questions of
law, see id. § 1252(a)(2)(D); Weinong Lin v. Holder, 763 F.3d
244, 246–47 (2d Cir. 2014). Tapsoba argues legal error in the
agency’s determination that “extraordinary circumstances” were
not presented by his belief that a third party to whom he had
provided identification documents, but whom he did not contact
for more than one year thereafter, would file his application
for him. We identify no legal error in the agency’s conclusion
that any such reliance was not reasonable. See 8 C.F.R.
§ 1208.4(a)(5) (describing “extraordinary circumstances” to
include serious illness, legal disability, or documented
ineffective assistance of counsel “directly related” to
untimeliness). We therefore lack jurisdiction to review
Tapsoba’s asylum claim.
II. Withholding of Removal and CAT
While we nonetheless possess jurisdiction to review
Tapsoba’s withholding of removal and CAT claims, see Liu v.
I.N.S., 508 F.3d 716, 722 (2d Cir. 2007), we identify no error
in the agency’s conclusion that Tapsoba failed to meet his
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burden of proof on these claims. “While consistent, detailed,
and credible testimony may be sufficient to carry the alien’s
burden, evidence corroborating his story, or an explanation for
its absence, may be required where it would reasonably be
expected.” Diallo v. INS, 232 F.3d 279, 285 (2d Cir. 2000).
“Where the trier of fact determines that the applicant should
provide evidence that corroborates otherwise credible
testimony, such evidence must be provided unless the applicant
does not have the evidence and cannot reasonably obtain the
evidence.” See Chuilu Liu v. Holder, 575 F.3d 193, 197 (2d Cir.
2009); 8 U.S.C. §§ 1158(b)(1)(B), 1129a(c)(4)(B),
1231(b)(3)(C). In denying relief for lack of corroboration,
an IJ should identify specific pieces of missing documentation,
explain why the documentation was reasonably available, provide
the alien with an opportunity to explain the omission, and
assess an explanation that is given. See Chuilu Liu v. Holder,
575 F.3d at 198. “No court shall reverse a determination made
by a trier of fact with respect to the availability of
corroborating evidence . . . unless the court finds . . . that
a reasonable trier of fact is compelled to conclude that such
corroborating evidence is unavailable.” 8 U.S.C.
§ 1252(b)(4).
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Even assuming that Tapsoba testified credibly, the IJ
reasonably concluded that he failed adequately to corroborate
his claims. Tapsoba testified that he was arrested twice for
his political activities as the spokesman of his local merchant
association, detained for several days or weeks at a time, and
sustained injuries from which he continues to suffer. Letters
from his mother and brother, however, mention neither his
alleged arrests nor his alleged injuries. When asked about
this discrepancy, Tapsoba could not provide an explanation.
Nor did he provide any medical documentation of his injuries
or evidence of his role as a merchant-association spokesperson.
In sum, Tapsoba submitted no evidence to corroborate his central
claims of past persecution in Burkina Faso or the political
activities that allegedly made him a target for persecution.
The IJ specifically identified the types of documents that
could have corroborated Tapsoba’s testimony and questioned him
about the absence of such documentation. Given Tapsoba’s
failure to explain why he did not obtain that evidence, we cannot
conclude that the record compels a conclusion that the evidence
was unavailable. See 8 U.S.C. § 1252(b)(4).
Because this corroboration determination is dispositive,
we need not reach the agency’s alternative rulings, see INS v.
Bagamasbad, 429 U.S. 24, 25 (1976), to conclude that the
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agency’s denial of withholding of removal and CAT relief was
not in error, see Chuilu Liu, 575 F.3d at 198-99; see also Paul
v. Gonzales, 444 F.3d 148, 155-57 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED and the pending motion for a stay of removal is DISMISSED
as moot.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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