17-597 Umirov v. Whitaker BIA Christensen, IJ A088 427 970 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 12th day of December, two thousand eighteen.
PRESENT: PETER W. HALL, DEBRA ANN LIVINGSTON, GERARD E. LYNCH, Circuit Judges. _____________________________________
RUSLAN UMIROV, AKA RUSLAN UMIROVA, Petitioner,
v. 17-597 NAC MATTHEW G. WHITAKER, ACTING UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________
FOR PETITIONER: Nicole Abruzzo Hemrick, Law Offices of Spar & Bernstein, P.C., New York, NY.
FOR RESPONDENT: Chad A. Readler, Acting Assistant Attorney General; Terri J. Scadron, Senior Litigation Counsel; Stefanie Notarino Hennes, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.
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 Ruslan Umirov, a native of the former Soviet
Union who was born in what is now Kazakhstan,1 seeks review
of a February 1, 2017, decision of the BIA affirming an April
19, 2016, decision of an Immigration Judge (“IJ”) denying his
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Ruslan
Umirov, No. A 088 427 970 (B.I.A. Feb. 1, 2017), aff’g No. A
088 427 970 (Immig. Ct. N.Y. City Apr. 19, 2016). We assume
the parties’ familiarity with the underlying facts and
procedural history in this case.
We note at the outset that Umirov only challenges the
agency’s denial of asylum, and has thus waived his claims for
1 Umirov argues that he is not a citizen of Kazakhstan. The agency found the record of Umirov’s citizenship inconclusive and ordered him removed to Kazakhstan because it was where he lived before coming to the United States and the location of his birth. 8 U.S.C. § 1231(b)(2)(E)(iii), (vi). 2 withholding of removal and CAT relief. Yueqing Zhang v.
Gonzales, 426 F.3d 540, 541 n.1 (2d Cir. 2005) (providing
that issues not raised in an opening brief are waived). The
agency denied asylum on two alternative bases: Umirov failed
to timely file his application and, assuming timely filing,
he failed to establish a well-founded fear of persecution in
Kazakhstan. Because the timeliness ruling is dispositive,
we decline to reach the agency’s alternative burden
determination. INS v. Bagamasbad, 429 U.S. 24, 25 (1976)
(“As a general rule courts and agencies are not required to
make findings on issues the decision of which is unnecessary
to the results they reach.”).
With respect to the timeliness ruling, we have reviewed
both the IJ’s and BIA’s decisions “for the sake of
completeness.” Wangchuck v. DHS, 448 F.3d 524, 528 (2d Cir.
2006). To be eligible for asylum, an alien must provide
clear and convincing evidence that he applied for asylum
within one year of entering the United States or show “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 within the [one-year] period.” 8 U.S.C.
3 § 1158(a)(2)(B), (D). Our review of the agency’s timeliness
ruling is limited to constitutional claims and questions of
law. 8 U.S.C. §§ 1158(a)(3); 1252(a)(2)(D). Although
Umirov’s challenges to the timeliness ruling lack merit, as
discussed below, they are not “so insubstantial and
frivolous” that we lack jurisdiction to review them. Barco-
Sandoval v. Gonzales, 516 F.3d 35, 40 (2d Cir. 2008).
The Immigration and Nationality Act (“INA”) and the
agency’s regulations set out the “extraordinary
circumstances” that excuse the failure to meet the 1-year
application deadline. 8 U.S.C. § 1158(a)(2)(D); 8 C.F.R.
§ 1208.4(a)(5) For example, “unaccompanied alien children” or
“unaccompanied minors” are excused from filing for asylum
within the one-year period. 8 U.S.C. § 1158(a)(2)(E); 8 C.F.R.
§ 1208.4(a)(5)(ii). Although this exception is limited to
unaccompanied minors, the agency assumed that Umirov was
excused from applying for asylum until he turned 18 years
old. Failure to file within the one-year filing deadline is
also excused where the applicant maintains lawful immigration
status or is given parole “until a reasonable period before
the filing of the asylum application.” 8 C.F.R.
§ 1208.4(a)(5)(iv). The agency also accepted that Umirov’s
4 status as a derivative beneficiary on his mother’s relief
application might trigger this exception.
However, the IJ determined that Umirov’s failure to apply
for asylum during the time period between December 2006 (when
he turned 18) and September 2008 (when he was apprehended and
initially detained, and his mother applied for a visa) was
not reasonable. See 8 C.F.R. § 1208.4(a)(5) (providing that
extraordinary circumstances “may excuse the failure to file
within the 1–year period as long as the alien filed the
[asylum] application within a reasonable period given those
circumstances”); In re T-M-H & S-W-C-, 25 I. & N. Dec. 193
(B.I.A. 2010) (holding that there is no bright-line rule, but
delays of greater than six months will generally be
unreasonable). Accordingly, the issue is whether any other
extraordinary circumstance excused Umirov’s failure to file
during this period.
We retain jurisdiction to review Umirov’s arguments that
the IJ misapplied the legal standards or overlooked or
misconstrued evidence in reaching the conclusion that there
was no other extraordinary circumstance. See Mendez v.
Holder, 566 F.3d 316, 323 (2d Cir. 2009). However, as
discussed below, these arguments lack merit.
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17-597 Umirov v. Whitaker BIA Christensen, IJ A088 427 970 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 12th day of December, two thousand eighteen.
PRESENT: PETER W. HALL, DEBRA ANN LIVINGSTON, GERARD E. LYNCH, Circuit Judges. _____________________________________
RUSLAN UMIROV, AKA RUSLAN UMIROVA, Petitioner,
v. 17-597 NAC MATTHEW G. WHITAKER, ACTING UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________
FOR PETITIONER: Nicole Abruzzo Hemrick, Law Offices of Spar & Bernstein, P.C., New York, NY.
FOR RESPONDENT: Chad A. Readler, Acting Assistant Attorney General; Terri J. Scadron, Senior Litigation Counsel; Stefanie Notarino Hennes, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.
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 Ruslan Umirov, a native of the former Soviet
Union who was born in what is now Kazakhstan,1 seeks review
of a February 1, 2017, decision of the BIA affirming an April
19, 2016, decision of an Immigration Judge (“IJ”) denying his
application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). In re Ruslan
Umirov, No. A 088 427 970 (B.I.A. Feb. 1, 2017), aff’g No. A
088 427 970 (Immig. Ct. N.Y. City Apr. 19, 2016). We assume
the parties’ familiarity with the underlying facts and
procedural history in this case.
We note at the outset that Umirov only challenges the
agency’s denial of asylum, and has thus waived his claims for
1 Umirov argues that he is not a citizen of Kazakhstan. The agency found the record of Umirov’s citizenship inconclusive and ordered him removed to Kazakhstan because it was where he lived before coming to the United States and the location of his birth. 8 U.S.C. § 1231(b)(2)(E)(iii), (vi). 2 withholding of removal and CAT relief. Yueqing Zhang v.
Gonzales, 426 F.3d 540, 541 n.1 (2d Cir. 2005) (providing
that issues not raised in an opening brief are waived). The
agency denied asylum on two alternative bases: Umirov failed
to timely file his application and, assuming timely filing,
he failed to establish a well-founded fear of persecution in
Kazakhstan. Because the timeliness ruling is dispositive,
we decline to reach the agency’s alternative burden
determination. INS v. Bagamasbad, 429 U.S. 24, 25 (1976)
(“As a general rule courts and agencies are not required to
make findings on issues the decision of which is unnecessary
to the results they reach.”).
With respect to the timeliness ruling, we have reviewed
both the IJ’s and BIA’s decisions “for the sake of
completeness.” Wangchuck v. DHS, 448 F.3d 524, 528 (2d Cir.
2006). To be eligible for asylum, an alien must provide
clear and convincing evidence that he applied for asylum
within one year of entering the United States or show “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 within the [one-year] period.” 8 U.S.C.
3 § 1158(a)(2)(B), (D). Our review of the agency’s timeliness
ruling is limited to constitutional claims and questions of
law. 8 U.S.C. §§ 1158(a)(3); 1252(a)(2)(D). Although
Umirov’s challenges to the timeliness ruling lack merit, as
discussed below, they are not “so insubstantial and
frivolous” that we lack jurisdiction to review them. Barco-
Sandoval v. Gonzales, 516 F.3d 35, 40 (2d Cir. 2008).
The Immigration and Nationality Act (“INA”) and the
agency’s regulations set out the “extraordinary
circumstances” that excuse the failure to meet the 1-year
application deadline. 8 U.S.C. § 1158(a)(2)(D); 8 C.F.R.
§ 1208.4(a)(5) For example, “unaccompanied alien children” or
“unaccompanied minors” are excused from filing for asylum
within the one-year period. 8 U.S.C. § 1158(a)(2)(E); 8 C.F.R.
§ 1208.4(a)(5)(ii). Although this exception is limited to
unaccompanied minors, the agency assumed that Umirov was
excused from applying for asylum until he turned 18 years
old. Failure to file within the one-year filing deadline is
also excused where the applicant maintains lawful immigration
status or is given parole “until a reasonable period before
the filing of the asylum application.” 8 C.F.R.
§ 1208.4(a)(5)(iv). The agency also accepted that Umirov’s
4 status as a derivative beneficiary on his mother’s relief
application might trigger this exception.
However, the IJ determined that Umirov’s failure to apply
for asylum during the time period between December 2006 (when
he turned 18) and September 2008 (when he was apprehended and
initially detained, and his mother applied for a visa) was
not reasonable. See 8 C.F.R. § 1208.4(a)(5) (providing that
extraordinary circumstances “may excuse the failure to file
within the 1–year period as long as the alien filed the
[asylum] application within a reasonable period given those
circumstances”); In re T-M-H & S-W-C-, 25 I. & N. Dec. 193
(B.I.A. 2010) (holding that there is no bright-line rule, but
delays of greater than six months will generally be
unreasonable). Accordingly, the issue is whether any other
extraordinary circumstance excused Umirov’s failure to file
during this period.
We retain jurisdiction to review Umirov’s arguments that
the IJ misapplied the legal standards or overlooked or
misconstrued evidence in reaching the conclusion that there
was no other extraordinary circumstance. See Mendez v.
Holder, 566 F.3d 316, 323 (2d Cir. 2009). However, as
discussed below, these arguments lack merit.
5 Umirov first argues that the agency failed to consider
whether his psychiatric conditions (including post-traumatic
stress disorder and depression) were an extraordinary
circumstance that excused his delay in seeking asylum. See
8 C.F.R. § 1208.4(a)(5)(i) (listing “[s]erious illness or
mental or physical disability” as one extraordinary
circumstance); (ii) (defining “legal disability” to include
“suffer[ing] from a mental impairment”). However, while
Umirov submitted mental health evidence and testified briefly
about his conditions, he did not testify or argue before the
IJ that his conditions were an extraordinary circumstance
that prevented him from applying for asylum. Because the IJ
acknowledged Umirov’s mental health conditions and concluded
that they did not affect Umirov’s competency, remand is not
warranted. Xiao Ji Chen, 471 F.3d at 336 n.17 (“We presume
that an IJ has taken into account all of the evidence before
him, unless the record compellingly suggests otherwise.”);
Wei Guang Wang v. Bd. of Immigration Appeals, 437 F.3d 270,
275 (2d Cir. 2006) (the agency need not “expressly parse or
refute on the record each individual argument or piece of
evidence offered by the petitioner”).
6 Umirov also argues that the IJ erred in determining that
his status as a minor ended at 18 years old rather than at 21
years old. However, as the BIA observed, the relevant INA
provision that excuses “unaccompanied alien children” from
meeting the one-year filing deadline, 8 U.S.C.
§ 1158(a)(2)(E), explicitly incorporates another provision
that defines “unaccompanied alien child” as: a child who has
no lawful immigration status, “has not attained 18 years of
age,” and has no parent or legal guardian in the United States
available to care for him or her, see 6 U.S.C. § 279(g).
Accordingly, the IJ did not err in finding that Umirov’s minor
status ended when he turned 18.
Absent any legal error in the agency’s analysis, the
ultimate question of whether Umirov’s delay in applying for
asylum was reasonable is a factual determination that we do
not have jurisdiction to review further. 8 U.S.C.
§ 1158(a)(3); Xiao Ji Chen, 471 F.3d at 330-32.
For the foregoing reasons, the petition for review is
DENIED. 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
7 in this petition is DENIED in accordance with Federal Rule of
Appellate Procedure 34(a)(2), and Second Circuit Local Rule
34.1(b).
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court