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.
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 14th day of January, two thousand nineteen. 5 6 PRESENT: 7 PETER W. HALL, 8 DEBRA ANN LIVINGSTON, 9 GERARD E. LYNCH, 10 Circuit Judges. 11 _____________________________________ 12 13 RUSLAN UMIROV, AKA RUSLAN 14 UMIROVA, 15 Petitioner, 16 17 v. 17-597 18 NAC 19 MATTHEW G. WHITAKER, 20 ACTING UNITED STATES ATTORNEY 21 GENERAL, 22 Respondent. 23 _____________________________________ 24 25 FOR PETITIONER: Nicole Abruzzo Hemrick, Law 26 Offices of Spar & Bernstein, P.C., 27 New York, NY. 28 29 FOR RESPONDENT: Chad A. Readler, Acting Assistant 30 Attorney General; Terri J. 31 Scadron, Senior Litigation 32 Counsel; Stefanie Notarino Hennes, 1 Trial Attorney, Office of 2 Immigration Litigation, United 3 States Department of Justice, 4 Washington, DC. 5 6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DENIED.
10 Petitioner Ruslan Umirov, a native of the former Soviet
11 Union who was born in what is now Kazakhstan, 1 seeks review
12 of a February 1, 2017, decision of the BIA affirming an April
13 19, 2016, decision of an Immigration Judge (“IJ”) denying his
14 application for asylum, withholding of removal, and relief
15 under the Convention Against Torture (“CAT”). In re Ruslan
16 Umirov, No. A 088 427 970 (B.I.A. Feb. 1, 2017), aff’g No. A
17 088 427 970 (Immig. Ct. N.Y. City Apr. 19, 2016). We assume
18 the parties’ familiarity with the underlying facts and
19 procedural history in this case.
20 We note at the outset that Umirov only challenges the
21 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 1 withholding of removal and CAT relief. Yueqing Zhang v.
2 Gonzales, 426 F.3d 540, 541 n.1 (2d Cir. 2005) (providing
3 that issues not raised in an opening brief are waived). The
4 agency denied asylum on two alternative bases: Umirov failed
5 to timely file his application and, even assuming timely
6 filing, he failed to establish a well-founded fear of
7 persecution in Kazakhstan. Because the timeliness ruling is
8 dispositive, we decline to reach the agency’s alternative
9 burden determination. INS v. Bagamasbad, 429 U.S. 24, 25
10 (1976) (“As a general rule courts and agencies are not
11 required to make findings on issues the decision of which is
12 unnecessary to the results they reach.”).
13 With respect to the timeliness ruling, we have reviewed
14 both the IJ’s and BIA’s decisions “for the sake of
15 completeness.” Wangchuck v. DHS, 448 F.3d 524, 528 (2d Cir.
16 2006). To be eligible for asylum, an alien must provide
17 clear and convincing evidence that he applied for asylum
18 within one year of entering the United States or show “either
19 the existence of changed circumstances which materially
20 affect the applicant’s eligibility for asylum or
21 extraordinary circumstances relating to the delay in filing
22 an application within the [one-year] period.” 8 U.S.C.
3 1 § 1158(a)(2)(B), (D). Our review of the agency’s timeliness
2 ruling is limited to constitutional claims and questions of
3 law. 8 U.S.C. §§ 1158(a)(3); 1252(a)(2)(D). Although
4 Umirov’s challenges to the timeliness ruling lack merit, as
5 discussed below, they are not “so insubstantial and
6 frivolous” that we lack jurisdiction to review them. Barco-
7 Sandoval v. Gonzales, 516 F.3d 35, 40 (2d Cir. 2008).
8 The Immigration and Nationality Act (“INA”) and the
9 agency’s regulations excuse the failure to meet the one-year
10 application deadline under certain circumstances. For
11 example, “unaccompanied minors” are excused from filing for
12 asylum within the one-year period. 8 U.S.C. § 1158(a)(2)(E);
13 8 C.F.R. § 1208.4(a)(5)(ii). Although this exception is
14 limited to unaccompanied minors, the agency assumed that
15 Umirov was excused from applying for asylum until he turned
16 18 years old. Failure to file within the one-year filing
17 deadline is also excused where the applicant maintains lawful
18 immigration status or parole “until a reasonable period
19 before the filing of the asylum application.” 8 C.F.R.
20 § 1208.4(a)(5)(iv). The agency also accepted that Umirov’s
21 status as a derivative beneficiary on his mother’s relief
22 application might trigger this exception.
4 1 However, the IJ determined that Umirov’s failure to apply
2 for asylum during the time period between December 2006 (when
3 he turned 18) and September 2008 (when he was apprehended and
4 initially detained, and his mother applied for a visa) was
5 not reasonable. See 8 C.F.R. § 1208.4(a)(5) (providing that
6 extraordinary circumstances “may excuse the failure to file
7 within the 1–year period as long as the alien filed the
8 [asylum] application within a reasonable period given those
9 circumstances”); In re T-M-H & S-W-C-, 25 I. & N. Dec. 193
10 (B.I.A. 2010) (holding that there is no bright-line rule, but
11 delays of greater than six months will generally be
12 unreasonable). Accordingly, the issue presented here is
13 whether any other extraordinary circumstance excused Umirov’s
14 failure to file during this period.
15 We retain jurisdiction to review Umirov’s arguments that
16 the IJ misapplied the legal standards or overlooked or
17 misconstrued evidence in reaching the conclusion that there
18 was no other extraordinary circumstance. See Mendez v.
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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.
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 14th day of January, two thousand nineteen. 5 6 PRESENT: 7 PETER W. HALL, 8 DEBRA ANN LIVINGSTON, 9 GERARD E. LYNCH, 10 Circuit Judges. 11 _____________________________________ 12 13 RUSLAN UMIROV, AKA RUSLAN 14 UMIROVA, 15 Petitioner, 16 17 v. 17-597 18 NAC 19 MATTHEW G. WHITAKER, 20 ACTING UNITED STATES ATTORNEY 21 GENERAL, 22 Respondent. 23 _____________________________________ 24 25 FOR PETITIONER: Nicole Abruzzo Hemrick, Law 26 Offices of Spar & Bernstein, P.C., 27 New York, NY. 28 29 FOR RESPONDENT: Chad A. Readler, Acting Assistant 30 Attorney General; Terri J. 31 Scadron, Senior Litigation 32 Counsel; Stefanie Notarino Hennes, 1 Trial Attorney, Office of 2 Immigration Litigation, United 3 States Department of Justice, 4 Washington, DC. 5 6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review
9 is DENIED.
10 Petitioner Ruslan Umirov, a native of the former Soviet
11 Union who was born in what is now Kazakhstan, 1 seeks review
12 of a February 1, 2017, decision of the BIA affirming an April
13 19, 2016, decision of an Immigration Judge (“IJ”) denying his
14 application for asylum, withholding of removal, and relief
15 under the Convention Against Torture (“CAT”). In re Ruslan
16 Umirov, No. A 088 427 970 (B.I.A. Feb. 1, 2017), aff’g No. A
17 088 427 970 (Immig. Ct. N.Y. City Apr. 19, 2016). We assume
18 the parties’ familiarity with the underlying facts and
19 procedural history in this case.
20 We note at the outset that Umirov only challenges the
21 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 1 withholding of removal and CAT relief. Yueqing Zhang v.
2 Gonzales, 426 F.3d 540, 541 n.1 (2d Cir. 2005) (providing
3 that issues not raised in an opening brief are waived). The
4 agency denied asylum on two alternative bases: Umirov failed
5 to timely file his application and, even assuming timely
6 filing, he failed to establish a well-founded fear of
7 persecution in Kazakhstan. Because the timeliness ruling is
8 dispositive, we decline to reach the agency’s alternative
9 burden determination. INS v. Bagamasbad, 429 U.S. 24, 25
10 (1976) (“As a general rule courts and agencies are not
11 required to make findings on issues the decision of which is
12 unnecessary to the results they reach.”).
13 With respect to the timeliness ruling, we have reviewed
14 both the IJ’s and BIA’s decisions “for the sake of
15 completeness.” Wangchuck v. DHS, 448 F.3d 524, 528 (2d Cir.
16 2006). To be eligible for asylum, an alien must provide
17 clear and convincing evidence that he applied for asylum
18 within one year of entering the United States or show “either
19 the existence of changed circumstances which materially
20 affect the applicant’s eligibility for asylum or
21 extraordinary circumstances relating to the delay in filing
22 an application within the [one-year] period.” 8 U.S.C.
3 1 § 1158(a)(2)(B), (D). Our review of the agency’s timeliness
2 ruling is limited to constitutional claims and questions of
3 law. 8 U.S.C. §§ 1158(a)(3); 1252(a)(2)(D). Although
4 Umirov’s challenges to the timeliness ruling lack merit, as
5 discussed below, they are not “so insubstantial and
6 frivolous” that we lack jurisdiction to review them. Barco-
7 Sandoval v. Gonzales, 516 F.3d 35, 40 (2d Cir. 2008).
8 The Immigration and Nationality Act (“INA”) and the
9 agency’s regulations excuse the failure to meet the one-year
10 application deadline under certain circumstances. For
11 example, “unaccompanied minors” are excused from filing for
12 asylum within the one-year period. 8 U.S.C. § 1158(a)(2)(E);
13 8 C.F.R. § 1208.4(a)(5)(ii). Although this exception is
14 limited to unaccompanied minors, the agency assumed that
15 Umirov was excused from applying for asylum until he turned
16 18 years old. Failure to file within the one-year filing
17 deadline is also excused where the applicant maintains lawful
18 immigration status or parole “until a reasonable period
19 before the filing of the asylum application.” 8 C.F.R.
20 § 1208.4(a)(5)(iv). The agency also accepted that Umirov’s
21 status as a derivative beneficiary on his mother’s relief
22 application might trigger this exception.
4 1 However, the IJ determined that Umirov’s failure to apply
2 for asylum during the time period between December 2006 (when
3 he turned 18) and September 2008 (when he was apprehended and
4 initially detained, and his mother applied for a visa) was
5 not reasonable. See 8 C.F.R. § 1208.4(a)(5) (providing that
6 extraordinary circumstances “may excuse the failure to file
7 within the 1–year period as long as the alien filed the
8 [asylum] application within a reasonable period given those
9 circumstances”); In re T-M-H & S-W-C-, 25 I. & N. Dec. 193
10 (B.I.A. 2010) (holding that there is no bright-line rule, but
11 delays of greater than six months will generally be
12 unreasonable). Accordingly, the issue presented here is
13 whether any other extraordinary circumstance excused Umirov’s
14 failure to file during this period.
15 We retain jurisdiction to review Umirov’s arguments that
16 the IJ misapplied the legal standards or overlooked or
17 misconstrued evidence in reaching the conclusion that there
18 was no other extraordinary circumstance. See Mendez v.
19 Holder, 566 F.3d 316, 323 (2d Cir. 2009). However, as
20 discussed below, Umirov’s arguments lack merit.
21 Umirov argues that the agency failed to consider whether
22 his psychiatric conditions (including post-traumatic stress
5 1 disorder and depression) were an extraordinary circumstance
2 that excused his delay in seeking asylum. See 8 C.F.R.
3 § 1208.4(a)(5)(i) (listing “[s]erious illness or mental or
4 physical disability” as one extraordinary circumstance), (ii)
5 (defining “legal disability” to include “suffer[ing] from a
6 mental impairment”). However, while Umirov submitted mental
7 health evidence and testified briefly about his conditions,
8 he did not testify or argue before the IJ that his conditions
9 were an extraordinary circumstance that prevented him from
10 applying for asylum. Moreover, because the IJ acknowledged
11 Umirov’s mental health conditions and concluded that they did
12 not affect Umirov’s competency, remand is not warranted.
13 Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 336 n.17
14 (2d Cir. 2006) (“We presume that an IJ has taken into account
15 all of the evidence before him, unless the record compellingly
16 suggests otherwise.”); Wei Guang Wang v. Bd. of Immigration
17 Appeals, 437 F.3d 270, 275 (2d Cir. 2006) (the agency need
18 not “expressly parse or refute on the record each individual
19 argument or piece of evidence offered by the petitioner.”).
20 Umirov also argues that the IJ erred in determining that
21 his status as a minor ended when he turned 18 years old rather
22 than when he turned 21. However, as the BIA observed, the
6 1 relevant INA provision that excuses “unaccompanied alien
2 children” from meeting the one-year filing deadline, 8 U.S.C.
3 § 1158(a)(2)(E), explicitly incorporates another provision
4 that defines “unaccompanied alien child” as: a child who has
5 no lawful immigration status, “has not attained 18 years of
6 age,” and has no parent or legal guardian in the United States
7 available to care for him or her, see 6 U.S.C. § 279(g).
8 Accordingly, the IJ did not err in finding that Umirov’s minor
9 status ended when he turned 18.
10 Absent any legal error in the agency’s analysis, the
11 ultimate question of whether Umirov’s delay in applying for
12 asylum was reasonable is a factual determination that we do
13 not have jurisdiction to review further. 8 U.S.C.
14 § 1158(a)(3); Xiao Ji Chen, 471 F.3d at 330-32.
15 For the foregoing reasons, the petition for review is
16 DENIED. Petitioner’s request for oral argument in this
17 petition is DENIED in accordance with Federal Rule of
18 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
19 34.1(b).
20 FOR THE COURT: 21 Catherine O’Hagan Wolfe, Clerk of Court 22