Cao v. Barr

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 — — 6 —