Jarbough v. Atty Gen USA

Opinions of the United

2007 Decisions States Court of Appeals

for the Third Circuit

4-11-2007

Jarbough v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 06-1081

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

__________

No. 06-1081

__________

ADEL FADLALA JARBOUGH,

Petitioner,

v.

ATTORNEY GENERAL OF THE UNITED STATES.

______________________

On Review of a Decision of the

Board of Immigration Appeals

(Agency No. A79 138 652)

Immigration Judge: R.K. Malloy

Submitted pursuant to Third Circuit LAR 34.1(a)

January 25, 2007

Before: SCIRICA, Chief Judge, FUENTES and CHAGARES,

Circuit Judges.

(Filed: April 11, 2007)

Marc J. Reiter

Suite 600

312 Boulevard of the Allies

Pittsburgh, PA 15222

Counsel for Petitioner

Adel Fadlala Jarbough

Richard M. Evans

Joan E. Smiley

Genevieve Holm

United States Department of Justice

Office of Immigration Litigation

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

Counsel for Respondent

Attorney General of the United States

OPINION OF THE COURT

CHAGARES, Circuit Judge.

Adel Jarbough petitions for review of a final order of

removal issued by the Board of Immigration Appeals (“BIA”). As

explained below, we lack jurisdiction to review Jarbough’s claim

that extraordinary circumstances excused the late filing of his

asylum application. In addition, substantial evidence supports the

BIA’s denial of withholding of removal, and the Immigration

Judge’s (“IJ”) rulings and conduct did not violate the Due Process

Clause. Accordingly, we will dismiss the petition for review in

part, and deny it in part.

I.

Mr. Jarbough is a native and citizen of Syria. In March

2001, he entered the United States as a non-immigrant authorized

to remain until June of that year. Jarbough overstayed his visa, and

in December 2002 he filed an application for asylum, withholding

of removal, and protection under the Convention Against Torture

(“CAT”).1 Jarbough claimed to have suffered persecution in Syria

1

United Nations Convention Against Torture and Other

Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10,

2

on account of his being a Druze,2 and on account of a pro-Israeli

political opinion imputed to him by the Syrian government.

Jarbough conceded that he filed his asylum application more

than one year after his arrival in the United States. However, he

claimed that extraordinary circumstances excused the delay. See

8 U.S.C. § 1158(a)(2)(B), (D). Specifically, in May 2001,

Jarbough consulted with an attorney (not counsel in the present

appeal). Jarbough described his troubles in Syria, and the attorney

opined that Jarbough had little hope of winning asylum. When the

meeting ended, the men went their separate ways. Critically,

though, the attorney neglected to mention the one-year deadline for

filing an asylum application. According to Jarbough, this negligent

omission was an extraordinary circumstance capable of tolling the

one-year deadline.

As to the merits, Jarbough styled his application as a “mixed

motives” case. See Singh v. Gonzales, 406 F.3d 191, 197 (3d Cir.

2005). He claimed that the Syrian government’s decision to

persecute him resulted from a number of factors. First and

foremost, he was a Druze. Jarbough claimed that the Syrian

government has traditionally suspected the Druze of collaborating

with the Israelis. Second, Jarbough had served in the Syrian

military and worked as a civilian employee of the Ministry of

Defense. Third, he had been in communication with his uncle, a

resident of the Israeli-controlled Golan Heights. In early 2001,

Jarbough’s uncle visited his family in Syria for the first time since

the 1967 Six-Day War. Jarbough and his uncle subsequently spent

two days together. This apparently raised the suspicions of the

Syrian intelligence authorities. Jarbough claimed that these

authorities believed he was an Israeli spy and, for that, they

1984, 1465 U.N.T.S. 85, implemented in the United States by the

Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No.

105-277, § 2242, 112 Stat. 2681-761 (codified at 8 U.S.C. § 1231).

2

The Druze religion grew out of Shia Islam and was founded

in the eleventh century. Its adherents are primarily concentrated in

Lebanon, Syria, and Israel. See generally Salman Falah, The

Druze in the Middle East 1-4 (2002).

3

persecuted him.

A few weeks after the visit from Jarbough’s uncle, Syrian

intelligence officers seized Jarbough from his home and took him

to their facility. The officers placed Jarbough in an interrogation

room that contained wires and electrical cables. They told

Jarbough, “[I]f you don’t tell the truth . . . you will have [the] feel

of it.” Appendix (“App.”) 192. Although the officers did not use

the electrical devices, they repeatedly screamed at Jarbough and

jabbed their fingers and fists into his shoulder. After four hours of

interrogation, they released him.

Ten days later, the authorities seized Jarbough again. This

time he remained in their custody for two days. Once again, the

officers cursed and screamed, yelling, “You are a spy, all of you

are.” App. 210. In the interrogation room, Jarbough saw electric-

shock machines that looked similar to torture devices he had seen

on television. The officers did not use the devices, but they did

administer a series of kicks, shoves, and pushes. After two days,

the officers released Jarbough and told him to remain in his house.

Jarbough had some bruises, but he did not go to a doctor because

his injuries “did not really require immediate medical

intervention.” App. 258. Shortly thereafter, he left for the United

States.

Jarbough recounted these tribulations at an August 2004

hearing before an IJ. At the beginning of the hearing, Jarbough’s

attorney asked for a continuance. He wanted a delay to secure the

expert testimony of Professor Joshua Landis, a scholar well-versed

in the historical plight of the Syrian Druze. The IJ responded that

she was “finishing th[e] case today.” App. 137. Her next available

hearing date was in April 2005, and she viewed an eight-month

delay as unacceptable. Rebuffed, Jarbough’s attorney instead

submitted an article by Professor Landis. See Joshua Landis,

Shishakli and the Druzes: Integration and Intransigence, in The

Syrian Land: Processes of Integration and Fragmentation 369 (T.

Philipp & B. Schaebler eds., 1998), reprinted in App. 515-37. The

IJ stated that she would “certainly take note of th[e] article.” App.

142.

Jarbough’s attorney also sought to introduce the testimony

4

of Norris El-Attrache. Like Jarbough, El-Attrache is a Syrian

Druze. He was prepared to describe the Syrian government’s

persecution of his family. According to counsel, this evidence

would show “that people similarly situated to [Jarbough] have

disappeared and/or are being killed based on the fact that they are

[D]ruze.” App. 136. The IJ refused to allow it. She reasoned that

El-Attrache’s testimony would effectively require her to “entertain

. . . 2 asylum applications.” App. 136. Nonetheless, Jarbough’s

counsel did submit an affidavit from El-Attrache. In it, El-Attrache

spoke generally about the Druze religion, discussed the persecution

of the Druze by the Syrian government, and stated that “on

Feb[ruary] 4, 1954, [his] father was killed in battle with the Syrian

army.” App. 682-83.

With these preliminary considerations disposed of, Jarbough

took the stand and testified. During the hearing, the IJ repeatedly

sustained objections that Jarbough’s counsel was asking leading

questions. At one point, there occurred a rather testy exchange

between the IJ and Jarbough’s attorney. Jarbough was describing

the cables he had seen in the intelligence facility’s interrogation

room. Counsel asked, “What kind of cables were these?” App.

193. At this point, the Department of Homeland Security’s

attorney objected on relevance grounds. Jarbough’s attorney

responded, “They’re electrical cables.” Id. Moments later,

Jarbough parroted, “Electrical cables.” Id. This angered the IJ.

She scolded Jarbough’s attorney and admonished him to “[s]top

giving the answers.” App. 194-98.

Jarbough’s testimony continued. The next day, the IJ heard

closing arguments and rendered an oral decision. She concluded

that no extraordinary circumstances excused Jarbough’s failure to

comply with the one-year deadline. In the alternative, she found

that Jarbough had not established eligibility for asylum. The IJ

also found him ineligible for withholding of removal and CAT

relief.

On appeal, the BIA affirmed. It adopted most of the IJ’s

findings and added a few thoughts of its own. Specifically, it

explained in greater detail why the omission by the attorney

Jarbough visited did not constitute an extraordinary circumstance.

5

This petition for review followed. Jarbough challenges the

BIA’s rejection of his asylum application as untimely, its denial of

withholding of removal, and he also contends that several of the

IJ’s rulings as well as her conduct violated the Due Process Clause.

II.

We consider first Jarbough’s claim that extraordinary

circumstances excused the late filing of his asylum application.

Under 8 U.S.C. § 1158(a)(2)(B), an alien must file an asylum

application within one year of his arrival in the United States. A

late-filed application may be excused if the alien demonstrates “to

the satisfaction of the Attorney General either the existence of

changed circumstances which materially affect the applicant’s

eligibility for asylum or extraordinary circumstances relating to the

delay in filing an application . . . .” 8 U.S.C. § 1158(a)(2)(D).

Immediately after that provision, paragraph (a)(3) states that “[n]o

court shall have jurisdiction to review any determination of the

Attorney General under paragraph (2).” 8 U.S.C. § 1158(a)(3).

Accordingly, in Tarrawally v. Ashcroft, 338 F.3d 180 (3d Cir.

2003), we held that § 1158(a)(3) stripped us of jurisdiction to

review a “determination that an asylum petition was not filed

within the one year limitations period, and that such period was not

tolled by extraordinary circumstances.” Id. at 185.

After Tarrawally, however, Congress enacted the REAL ID

Act of 2005. Section 106 of the REAL ID Act restored our

jurisdiction to review “constitutional claims or questions of law

raised upon a petition for review . . . .” REAL ID Act of 2005 §

106(a)(1)(A)(iii), 8 U.S.C. § 1252(a)(2)(D).3

The jurisdictional grant of § 1252(a)(2)(D) is narrowly

circumscribed. See Saloum v. U.S. Citizenship & Immig. Servs.,

437 F.3d 238, 242-43 (2d Cir. 2006); Higuit v. Gonzales, 433 F.3d

417, 419 (4th Cir. 2006). For instance, it is clear that courts of

appeals continue to have no jurisdiction to review discretionary and

factual determinations presented in petitions for review. See, e.g.,

3

We have jurisdiction to determine whether we have

jurisdiction. United States v. Ruiz, 536 U.S. 622, 628 (2002).

6

Diallo v. Gonzales, 447 F.3d 1274, 1281 (10th Cir. 2006); Jean v.

Gonzales, 435 F.3d 475, 480 (4th Cir. 2006); Sukwanputra v.

Gonzales, 434 F.3d 627, 634 (3d Cir. 2006) (“Despite the special

treatment accorded constitutional claims and questions of law, §

1252(a)(2)(D) does not exempt factual or discretionary challenges

from the jurisdiction-stripping provisions of the INA.”); Mehilli v.

Gonzales, 433 F.3d 86, 93 (1st Cir. 2005); Vasile v. Gonzales, 417

F.3d 766, 768 (7th Cir. 2005).

In Sukwanputra, the petitioners claimed they had presented

a question of law as to whether they were entitled to an extension

under § 1158(a)(2)(D). We recognized in that case that petitioners

were, in fact, challenging an exercise of discretion and noted

“[s]uch a claim does not raise a constitutional claim or question of

law covered by the REAL ID Act’s judicial review provision.” 434

F.3d at 635. We concluded “that, despite the changes of the REAL

ID Act, . . . § 1158(a)(3) continues to divest [us] of jurisdiction to

review . . . whether an alien established changed or extraordinary

circumstances that would excuse his untimely filing.” Id.

Our decision in Sukwanputra is in accord with the decisions

of other courts holding that challenges to the BIA’s extraordinary

or changed circumstances determinations do not constitute

“questions of law” within the meaning of § 1252(a)(2)(D). See,

e.g., Ignatova v. Gonzales, 430 F.3d 1209, 1214 (8th Cir. 2005);

Chacon-Botero v. U.S. Attorney Gen., 427 F.3d 954, 957 (11th Cir.

2005); Vasile, 417 F.3d at 768. Specifically, courts have

recognized arguments such as that an Immigration Judge or the

BIA incorrectly weighed evidence, failed to consider evidence or

improperly weighed equitable factors are not questions of law

under § 1252(a)(2)(D). See, e.g., Bugayong v. Immigration & Nat.

Serv., 442 F.3d 67, 71-72 (2d Cir. 2006); Elysee v. Gonzales, 437

F.3d 221, 223-24 (1st Cir. 2006); Higuit, 433 F.3d at 420. In

contrast, we have recognized that § 1252(a)(2)(D) confers upon us

jurisdiction over purely legal questions such as whether a particular

offense qualifies as an aggravated felony under the definition set

forth in 8 U.S.C. § 1101(a)(43). See Jeune v. Attorney General,

476 F.3d 199, 201 (3d Cir. 2007); Park v. Attorney General, 472

F.3d 66, 70 (3d Cir. 2006); Bobb v. Attorney General, 458 F.3d

213, 217 (3d Cir. 2006); Ng v. Attorney General, 436 F.3d 392,

394-95 (3d Cir. 2006) (whether a crime falls within §

7

1101(a)(43)(F) is “a question of pure statutory interpretation.”).

Petitioners alleging “constitutional claims” under §

1252(a)(2)(D) must, as a threshold, state a colorable violation of

the United States Constitution. See Mehilli, 433 F.3d at 94;

Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir. 2005). In

the present case, Jarbough claims that the extraordinary

circumstances analyses of the IJ and the BIA ignored certain

evidence and contained “clear factual mistakes” that resulted in “a

denial of due process.” See Jarbough Brief 15-16. On that basis,

he asserts that we have jurisdiction to review his “constitutional

claim[].”

We are not bound by the label attached by a party to

characterize a claim and will look beyond the label to analyze the

substance of a claim. To do otherwise would elevate form over

substance and would put a premium on artful labeling. See New

Jersey v. Dep’t of Health & Human Servs., 670 F.2d 1262, 1272

(3d Cir. 1981). Accordingly, artful labeling will not confer us with

jurisdiction. See Avendano-Espejo v. Dep’t of Homeland Sec., 448

F.3d 503, 505-06 (2d Cir. 2006) (per curiam) (“[P]etitioner’s

attempt to ‘dress up’ his challenge with the language of ‘due

process’ is insufficient to provide our Court with jurisdiction to

review his claim . . . .”); Saloum, 437 F.3d at 243 (“[W]e [do not]

believe that Saloum’s talismanic invocation of the language of ‘due

process’ itself suffices to provide this Court with jurisdiction to

review petitioner’s claims.”).

Aside from the constitutional label, Jarbough makes no

attempt to tie his claim of factual errors to the Due Process Clause.

At the core of due process are the requirements of notice and a

meaningful opportunity to be heard. See Mullane v. Cent. Hanover

Bank & Trust Co., 339 U.S. 306, 314 (1950). Jarbough does not

argue that the agency denied him notice, a reasonable opportunity

to present evidence, disclosure of fact finding or an individualized

determination on the extraordinary circumstances issue. See

Mudric v. Attorney General, 469 F.3d 94, 100 (3d Cir. 2006). His

only claim is that the IJ and the BIA got the facts wrong, and that

these erroneous findings of fact deprived him of due process.

Jarbough has failed to state a colorable violation of the

8

Constitution. He has simply taken his naked factual challenges and

clothed them in the garb of due process. Recasting challenges to

factual or discretionary determinations as due process or other

constitutional claims is clearly insufficient to give this Court

jurisdiction under § 1258(a)(2)(D). Our holding in this respect is

in accord with the decisions of the other courts of appeals that have

rejected similar challenges labeled as due process claims. See, e.g.,

Avendano-Espejo, 448 F.3d at 505-06 (no jurisdiction over

argument that IJ employed an erroneous legal standard); Saloum,

437 F.3d at 244 (no jurisdiction over arguments that IJ failed to

consider certain evidence, incorrectly weighed the evidence and

reached the wrong outcome); Mehilli, 433 F.3d at 94 (arguments

that IJ incorrectly weighed the evidence and failed to consider

certain evidence regarding credibility “fail[ed] to state a colorable

constitutional claim . . . . [S]uch arguments are not properly viewed

as constitutional challenges at all, but instead as simple claims that

substantial evidence did not support the IJ’s credibility finding.”);

Martinez-Rosas, 424 F.3d at 930 (no jurisdiction over argument

that IJ misapplied the facts to the applicable law, noting “traditional

abuse of discretion challenges recast as alleged due process

violations do not constitute colorable constitutional claims”).

Section 1158(a)(3) explicitly prohibits judicial review of the

discretionary authority committed to the Executive Branch under

§ 1158(a)(2)(D). The REAL ID Act of 2005 created a narrow

exception to this prohibition to permit judicial review over

constitutional claims and questions of law raised in petitions for

review. If we were to review a claim merely because it was

adorned with the label “constitutional claim” or “question of law,”

we would overstep our authority and frustrate Congress’ statutory

design. This we cannot do.

Garden-variety allegations of factual error such as those

presented here provide no colorable basis for a constitutional

challenge, and Jarbough’s due process label is insufficient to shield

him from the strictures of § 1158(a)(3). We therefore lack

jurisdiction to review the BIA’s extraordinary circumstances

determination.

III.

9

We do have jurisdiction to review the denial of withholding

of removal. See Tarrawally, 338 F.3d at 185-86. Under 8 U.S.C.

§ 1231(b)(3)(A), “the Attorney General may not remove an alien

to a country if the Attorney General decides that the alien’s life or

freedom would be threatened in that country because of the alien’s

race, religion, nationality, membership in a particular social group

or political opinion.” It is the applicant’s burden to establish the

threat to life or freedom by a “clear probability.” Tarrawally, 338

F.3d at 186; 8 C.F.R. § 1208.16(b). This standard is satisfied if the

“evidence establish[es] that it is more likely than not that the alien

would be subject to persecution on one of the specified grounds.”

See INS v. Stevic, 467 U.S. 407, 429-30 (1984). A finding of past

persecution raises a rebuttable presumption “that the applicant’s

life or freedom would be threatened in the future . . . .” 8 C.F.R. §

1208.16(b)(1)(i); see Gabuniya v. Attorney General, 463 F.3d 316,

321 (3d Cir. 2006).

Whether an applicant “has demonstrated past persecution .

. . is a factual determination reviewed under the substantial

evidence standard.” Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.

2002). Accordingly, “we may decline to uphold the BIA’s findings

only if the evidence compels a contrary conclusion.” Ahmed v.

Ashcroft, 341 F.3d 214, 216 (3d Cir. 2003).

Jarbough claims that the Syrian government persecuted him

because he is a Druze, and because it believed he held a pro-Israeli

political opinion. The IJ rejected these contentions. The BIA

largely adopted the IJ’s findings and added a few reasons of its

own. We thus review both the BIA’s decision and the IJ’s opinion

to the extent the BIA adopted it. See Miah v. Ashcroft, 346 F.3d

434, 439 (3d Cir. 2003).

At the outset, Jarbough challenges the IJ’s adverse-

credibility determination. The Attorney General, however,

disputes this argument’s premise. See Attorney General Brief 22

(“[T]he immigration judge did not make an adverse credibility

finding.”). Contrary to the Attorney General’s assertion, it seems

clear to us that the IJ made at least a partial adverse-credibility

determination. See App. 89 (“The Court finds that testimony to be

incredible.”). But the BIA did not explicitly adopt the IJ’s

credibility findings, so that portion of her decision is not properly

before us. Abdulai v. Ashcroft, 239 F.3d 542, 549 n.2 (3d Cir.

10

2001). We will therefore assume Jarbough was credible for

purposes of this petition.

Jarbough also challenges the BIA’s determination that his

troubles in Syria did not rise to the level of persecution.

Persecution “is an extreme concept that does not include every sort

of treatment our society regards as offensive.” Fatin v. INS, 12

F.3d 1233, 1243 (3d Cir. 1993). Abusive treatment and

harassment, while always deplorable, may not rise to the level of

persecution.

Here, Jarbough testified that Syrian intelligence officers

seized him on two occasions. The first time, the officers placed

Jarbough in an interrogation room for four hours. They threatened

him with wires and electrical cables, screamed at him, and jabbed

his shoulder with their fists. The second time, the officers confined

Jarbough for two days. They cursed, threatened, kicked, shoved,

and pushed him. As a result of this abuse, Jarbough suffered

bruising. He did not go to a doctor, however, as his injuries did not

“require immediate medical intervention.” App. 258.

There is no doubt that the officers’ behavior was harassing

and intimidating. Our society rightly regards their investigative

tactics as “offensive” and highly improper. See Fatin, 12 F.3d at

1243. Indeed, under a de novo standard of review, we might well

disagree with the agency’s conclusion that Jarbough failed to show

past persecution. But we are not triers of fact, and Congress

mandates that we leave the agency’s factfinding undisturbed unless

the “evidence compels a contrary conclusion.” Ahmed, 341 F.3d

at 216 (emphasis added). Under that deferential standard of

review, we cannot say this record compels a finding of past

persecution for purposes of withholding of removal. As a result,

we must hold that substantial evidence supports the BIA’s denial

of withholding of removal.

IV.

Jarbough also brings a variety of due process challenges to

the IJ’s conduct at the hearing. Aliens have a “right to a full and

fair hearing that allows them a reasonable opportunity to present

evidence on their behalf.” Cabrera-Perez v. Gonzales, 456 F.3d

11

109, 115 (3d Cir. 2006). To prevail on a due process claim, the

“alien must show substantial prejudice.” See Singh v. Gonzales,

432 F.3d 533, 541 (3d Cir. 2006).

First, Jarbough challenges the IJ’s refusal to grant a

continuance. Jarbough asked for a delay to secure the testimony of

Joshua Landis. In our view, the denial did not prevent Jarbough

“from reasonably presenting his case.” See Uspango v. Ashcroft,

289 F.3d 226, 231 (3d Cir. 2002) (quotations and citations

omitted). The record contains a lengthy article by Mr. Landis, see

App. 515-37, and Jarbough does not argue that Landis’ in-court

testimony would have materially differed from his written work.

As such, we conclude that the IJ’s denial of a continuance did not

deprive Jarbough of due process.

Second, Jarbough argues that the IJ improperly excluded the

testimony of Norris El-Attrache. Again, we fail to see how this

exclusion denied Jarbough a “reasonable opportunity to present

evidence.” See Cabrera-Perez, 456 F.3d at 115. The record

contains an affidavit by Mr. El-Attrache. Jarbough does not

explain whether or how El-Attrache would have expanded on this

account at the hearing. With El-Attrache’s story already in the

record, the IJ’s exclusion of the testimony was not a due process

violation. See Romanishyn v. Attorney General, 455 F.3d 175,

185-86 & n.10 (3d Cir. 2006).

Third, Jarbough contends that the IJ’s hostility toward his

attorney “curtailed . . . counsel’s ability to ask questions, and . . .

unduly prevented [Jarbough] from providing testimony.” Jarbough

Brief 29. It is clear from the record that Jarbough’s counsel

repeatedly asked Jarbough leading questions and that the IJ

repeatedly admonished him not to do so. See, e.g., App. 161-62

(“Why do you insist on testifying for your client?”); id. 81

(“[P]lease ask questions that are not leading.”).

Jarbough relies upon one particular exchange in support of

his argument. After asking Jarbough about the type of cables at the

Syrian intelligence facility, counsel stated the answer to his own

question: “They’re electrical cables.” App. 193. The IJ became

angry and instructed counsel at length about the impropriety of his

behavior.

12

When an attorney poses questions to a friendly witness

during a direct examination, it is generally improper for the

attorney to employ leading questions. Cf. Fed. R. Evid. 611(c).

Leading questions are undesirable in this context because of their

suggestive power. The “search for the truth,” Nix v. Whiteside,

475 U.S. 157, 171 (1986), in our adjudicatory system is best served

when the finder of fact considers the testimony of the friendly

witness based upon his or her recollection, not the testimony of

counsel calling the witness. Suggesting answers to the friendly

witness may “supply a false memory for the witness – that is, to

suggest desired answers not in truth based upon real recollection.”

3 John Henry Wigmore, Evidence § 769, at 154 (Chadbourne Rev.

1970). See Hall v. Clifton Precision, 150 F.R.D. 525, 531 (E.D.

Pa. 1993) (“It should go without saying that lawyers are strictly

prohibited from making any comments, either on or off the record,

which might suggest or limit a witness’s answer to an

unobjectionable question.”).

In this case, Jarbough’s attorney did not just ask a leading

question regarding the cables; he announced the expected answer

to his question. In this instance, it was clear that it was the attorney

who was testifying. There was nothing erroneous (much less

unconstitutional) about the IJ’s actions. The IJ’s rebuke did not

“unduly prevent[] [Jarbough] from providing testimony”; it

prevented his lawyer from testifying for him.

In sum, none of the IJ’s rulings or conduct deprived

Jarbough of the process he was constitutionally due.

V.

For these reasons, we will dismiss the petition for review in

part, and deny it in part.

13