
    Madiou DIALLO, Petitioner, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent.
    No. 13-2583 NAC.
    United States Court of Appeals, Second Circuit.
    Sept. 18, 2014.
    
      Gary J. Yerman, Yerman & Associates, LLC, New York, NY, for Petitioner.
    Stuart F. Delery, Assistant Attorney General; Keith I. McManus, Senior Litigation Counsel; Lindsay M. Murphy, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.
    PRESENT: JON O. NEWMAN, WALKER, and RICHARD C. WESLEY, Circuit Judges.
   SUMMARY ORDER

Petitioner Madiou Diallo, a native and citizen of Guinea, seeks review of a June 12, 2013 order of the BIA, affirming the March 16, 2012 decision of an Immigration Judge (“IJ”), which pretermitted asylum and denied withholding of removal and relief under the Convention Against Torture (“CAT”). In re Madiou Diallo, No. [ AXXX XXX XXX ] (B.I.A. June 12, 2013), aff'g No. [ AXXX XXX XXX ] (Immig. Ct. New York City Mar. 16, 2012). We assume the parties’ familiarity with the underlying facts and procedural history in this case.

Under the circumstances of this case, we review the decisions of both the IJ and the BIA. See Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir.2005) (per curiam). The applicable standards of review are well established. See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008) (per curiam).

Pretermission of Asylum

Title 8, Section 1158(a)(3) of the United States Code provides that no court shall have jurisdiction to review the agency’s finding that an asylum application was untimely under 8 U.S.C. § 1158(a)(2)(B). However, we retain jurisdiction to review constitutional claims and questions of law. 8 U.S.C. § 1252(a)(2)(D).

Here, we lack jurisdiction to review the agency’s pretermission of asylum because Diallo merely “quarrels over the correctness of the [agency’s] factual finding[ ]” that he did not return to Guinea in 2004 and reenter the United States in 2007. Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir.2006). Dial-lo contends that the agency erred by finding his witness credible but concluding that the witness’s testimony was insufficient to establish the timeliness of his application. However, as the IJ explained, the witness did not have any firsthand knowledge of Diallo’s whereabouts' between 2004 and 2007. Diallo’s assertion that the IJ held him to an overly stringent burden by requiring an eye witnesses to establish his return to Guinea and reentry to the United States is incorrect. The IJ did not pretermit Diallo’s asylum application because he did not produce an eye witness; she found that Diallo failed to establish the timeliness of his application because he testified inconsistently about whether his passport was stamped when he returned to Guinea and offered no tickets, boarding passes, stamps in his passport, or airline confirmations to establish that he ever flew back as he testified that he did. Diallo has waived review of these findings by failing to contest them in this Court. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 542 n. 1 (2d Cir.2005). Dial-lo’s suggestion that the agency erred by assessing the credibly of his testimony, in determining whether that testimony constituted clear and convincing evidence, is unsupported and clearly without merit.

Withholding of Removal

For applications such as Diallo’s, which are governed by the REAL ID Act, the agency may base a credibility finding on an applicant’s demeanor, the plausibility of his account, and inconsistencies in his statements, without regard to whether they go “to the heart of the applicant’s claim.” 8 U.S.C. § 1158(b)(l)(B)(iii). “We defer therefore to an IJ’s credibility determination unless, from the totality of the circumstances, it is plain that no reasonable fact-finder could make such an adverse credibility ruling.” Xiu Xia Lin, 534 F.3d at 167.

Diallo’s criticism of the BIA for failing to explicitly discuss the underlying bases for the IJ’s credibility determination is misplaced; the BIA did not explicitly discuss the underlying bases because Dial-lo did not challenge them on appeal. In addition to the statutory, jurisdictional requirement that petitioners exhaust each category of relief they seek, 8 U.S.C. § 1252(d)(1), petitioners must raise specific issues with the BIA before raising them in this Court. See Foster v. INS, 376 F.3d 75, 77-78 (2d Cir.2004). Issue exhaustion is mandatory: “If[, as here,] the government points out to the appeals court that an issue relied on before that court by a petitioner was not properly raised below, the court must decline to consider that issue, except in [] extraordinary situations.” Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 107 n. 1 (2d Cir.2007). We therefore decline to consider Diallo’s unexhausted challenges to the “findings that informed the IJ’s adverse credibility determination.” Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d Cir.2008).

CAT Relief

Lastly, we lack jurisdiction to review the denial of CAT relief because Diablo did not contest it before the BIA. In contrast to issue exhaustion, the failure to contest the denial of a category of relief is a jurisdictional defect. Karaj v. Gonzales, 462 F.3d 113, 119 (2d Cir.2006) (“The failure to seek review of the CAT claim deprives us of jurisdiction.”).

For the foregoing reasons, the petition for review is DISMISSED in part, insofar as it challenges the pretermission of asylum and denial of CAT relief, and DENIED in part, as it relates to the denial of withholding of removal. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34.1(b).  