Litvinova v. Mukasey

290 F. App'x 394
CourtCourt of Appeals for the Second Circuit
DecidedAugust 20, 2008
DocketNo. 07-3149-ag
StatusPublished

This text of 290 F. App'x 394 (Litvinova v. Mukasey) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Litvinova v. Mukasey, 290 F. App'x 394 (2d Cir. 2008).

Opinion

SUMMARY ORDER

Petitioner Yelena Litvinova, a native of the Union of Soviet Socialist Republics and a citizen of Russia, seeks review of a June 22, 2007 order of the BIA affirming the October 4, 2005 decision of Immigration Judge (“IJ”) Paul A. DeFonzo denying her application for asylum, withholding of removal and relief under the Convention Against Torture (“CAT”). In Re Yelena Litvinova, No. A95 161 992 (B.I.A. Jun. 22, 2007), affg No. A95 161 992 (Immig. Ct. New York City, Oct. 4, 2005). We assume the parties’ familiarity with the underlying facts and procedural history of the case.

1. Timeliness

As a preliminary matter, the Government has moved to dismiss this case as untimely pursuant to 8 U.S.C. § 1252(b)(1). Indeed, the petition for review in this case was docketed as having been filed in this Court on July 24, 2007, one day late. However, both Litvinova’s counsel and her counsel’s paralegal have submitted sworn affidavits, made under penalty of perjury, stating that the paralegal actually filed the petition for review on July 28, 2007, the last day of the filing period, but inadvertently neglected to time-stamp it before placing it in the Court’s drop-box. The Government has not disputed this explanation. We find the evidence sufficient to conclude that the petition was timely filed, and we accordingly deny the Government’s motion to dismiss the petition for review as untimely.

II. Merits

When the BIA does not adopt the decision of the IJ to any extent, we review only the decision of the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005); Jin Yu Lin v. U.S. Dep’t of Justice, 413 F.3d 188, 191 n. 4 (2d Cir. 2005).2 We review questions of law de novo, including “what evidence will suffice to carry any asylum applicant’s burden of proof.” Islami v. Gonzales, 412 F.3d 391, 396 (2d Cir.2005). We review factual findings under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see Manzur v. DHS, 494 F.3d 281, 289 (2d Cir.2007).

A. 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), or its finding of neither changed nor extraordinary circumstances excusing the untimeliness under 8 U.S.C. § 1158(a)(2)(D). While we retain jurisdiction, under 8 U.S.C. § 1252(a)(2)(D), to review constitutional claims and “questions of law,” Litvi-nova has challenged only the agency’s purely factual determinations and its exercise of discretion. We therefore dismiss Litvinova’s petition for review for lack of jurisdiction to the extent that she challenges the agency’s denial of her asylum claim. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329-331 (2d Cir. [396]*3962006); Joaquin-Porras v. Gonzales, 435 F.3d 172, 177-80 (2d Cir.2006).

B. Withholding of Removal and CAT Relief

Eligibility for withholding of removal and relief under the CAT are not subject to the one-year bar and must be considered regardless of the timeliness of the initial asylum request. See Xiao Ji Chen, 471 F.3d at 332, 340. Here, we conclude that the BIA erred in finding that Litvino-va did not establish a well-founded fear of future persecution. In its decision, the BIA concluded, broadly, that the record contained no evidence that Baptists are persecuted in Russia. That sweeping conclusion, without more, is “insufficient to permit meaningful review.” See Beskovic v. Gonzales, 467 F.3d 223, 227 (2d Cir. 2006).

Despite the deference typically afforded to IJ and BIA decisions, we “require a certain minimum level of analysis from the IJ and BIA opinions denying asylum, and indeed must require such if judicial review is to be meaningful.” Poradisova v. Gonzales, 420 F.3d 70, 77 (2d Cir.2005). “[I]t is well established that private acts may be persecution if the government has proved unwilling to control such actions.” Pavlova v. INS, 441 F.3d 82, 91 (2d Cir.2006) (citing Ivanishvili v. U.S. Dept. of Justice, 433 F.3d 332, 342 (2d Cir.2006)). Our review of the record reveals that a person in Litvinova’s circumstances may not receive the protection of the law. In Pavlova, as in this case, the petitioner alleged that she was persecuted by members of the Russian National Union (“RNU”) and that the Russian authorities were unwilling to control them. See id. We found that these allegations were “reinforced by Pavlova’s submission of a number of articles from newspapers and other sources that report discrimination by Russian authorities against ‘foreign’ sects and in favor of the Russian Orthodox Church.” Id. at 92.

Here, the BIA quoted selectively from the country reports and did not adequately address parts of the reports specific to Litvinova’s circumstances. The BIA’s only specific reference to the country reports was to quote the statement of the 2004 International Religious Freedom Report for Russia that “[fjnstances of religiously motivated violence continue.” The BIA’s decision then concluded, without elaboration, that “there is insufficient evidence in the record to indicate that any such incidents are sufficiently widespread to support even a grant of asylum[,] much less a grant of withholding of removal.”

But other evidence in the record suggests that Litvinova’s fear of future persecution is objectively reasonable.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Yan Chen v. Alberto Gonzales, Attorney General, 1
417 F.3d 268 (Second Circuit, 2005)
Manzur v. U.S. Department of Homeland Security
494 F.3d 281 (Second Circuit, 2007)
Xiao Xing Ni v. Gonzales
494 F.3d 260 (Second Circuit, 2007)
Beskovic v. Gonzales
467 F.3d 223 (Second Circuit, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
290 F. App'x 394, Counsel Stack Legal Research, https://law.counselstack.com/opinion/litvinova-v-mukasey-ca2-2008.