14‐2146‐ag Abankwah v. Lynch

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 COURTʹS 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 ʺSUMMARY ORDERʺ). A PARTY CITING 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 10th day of December, two thousand fifteen.

PRESENT: ROBERT D. SACK, DENNY CHIN, SUSAN L. CARNEY, Circuit Judges.

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ADELAIDE ABANKWAH, AKA Kuukuah Norman, AKA Regina Norman Danson, Petitioner,

v. 14‐2146‐ag

LORETTA E. LYNCH, United States Attorney General, Respondent.

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FOR PETITIONER: RICHARD MANCINO, Alison Rose Levine, Willkie Farr & Gallagher, New York, New York.

FOR RESPONDENT: STEFANIE A. SVOREN‐JAY, Trial Attorney, Office of Immigration Litigation, Benjamin C. Mizer, Acting Assistant Attorney General, Civil Division, John S. Hogan, Assistant Director, Office of Immigration Litigation, United States Department of Justice, Washington, D.C.

FOR AMICI CURIAE: Nancy Morawetz, Washington Square Legal Services, Immigrant Rights Clinic, for Amici Curiae Human Rights First, Immigrant Defense Project, National Immigration Project of the National Lawyers Guild, New York, New York.

UPON DUE CONSIDERATION of this petition for review of a Board of

Immigration Appeals (ʺBIAʺ) decision, it is hereby ORDERED, ADJUDGED, AND

DECREED that the petition for review is DISMISSED in part and DENIED in part.

Petitioner Adelaide Abankwah,1 a native and citizen of Ghana, seeks

review of a May 20, 2014 decision of the BIA affirming a December 14, 2012 decision of

an Immigration Judge (ʺIJʺ) denying Abankwahʹs application for asylum, withholding

of removal, and relief under the Convention Against Torture (ʺCATʺ). In re Adelaide

Abankwah, No. A074 881 776 (B.I.A. May 20, 2014), affʹg No. A074 881 776 (Immigr. Ct.

N.Y.C. Dec. 14, 2012). We assume the partiesʹ familiarity with the underlying facts, the

procedural history of the case, and the issues on appeal.

1 Petitioner entered the country and applied for asylum under the name ʺAdelaide Abankwah.ʺ Her real name apparently is Regina Norman Danson. We continue to refer to her as Abankwah, as she has been referred to in all of these related proceedings. 2 We review the IJʹs decision as supplemented by the BIA. See Yan Chen v.

Gonzales,

(2d Cir. 2005). Because Abankwah does not challenge the

agencyʹs denial of CAT relief, we address only her eligibility for asylum and

withholding of removal.

A. Timeliness of the Asylum Application

An asylum applicant must demonstrate ʺby clear and convincing evidence

that the application has been filed within 1 year after the date of the alienʹs arrival in the

United States.ʺ

(a)(2)(B). That deadline may be extended if the applicant

demonstrates ʺeither the existence of changed circumstances which materially affect the

applicantʹs eligibility for asylum or extraordinary circumstances relating to the delay in

filing an application.ʺ

§ 1158(a)(2)(D).

We lack jurisdiction to review the agencyʹs finding that an applicant did

not timely file her application, or that she failed to demonstrate changed or

extraordinary circumstances excusing the untimeliness. Id. § 1158(a)(3). We retain

jurisdiction to review constitutional claims and ʺquestions of law.ʺ Id. § 1252(a)(2)(D).

ʺ[W]hen the petition for review essentially disputes the correctness of an IJʹs fact‐

finding,ʺ it does not raise a question of law. Xiao Ji Chen v. DOJ,

(2d

Cir. 2006). Abankwah does not dispute that her second asylum application was

untimely; instead, she challenges the agencyʹs determination that she did not

demonstrate extraordinary circumstances excusing her late filing.

3 Abankwahʹs challenge, however, is merely to the IJʹs factual

determinations and exercise of discretion, which we lack jurisdiction to review. See

Joaquin‐Porras v. Gonzales,

(2d Cir. 2006); Xiao Ji Chen,

.

Abankwahʹs only legal argument is that the agency inappropriately applied a

ʺheightened legal standardʺ in determining that she did not demonstrate extraordinary

circumstances based on her post‐traumatic stress disorder (ʺPTSDʺ) diagnosis. Pet. Br.

at 27.

The argument is without merit. The agency did not hold Abankwah to a

ʺheightened legal standard.ʺ The IJ articulated and applied the standard for

ʺextraordinary circumstances,ʺ under which the applicant must show that (1) ʺthe

circumstances were not intentionally created by the [applicant]ʺ; (2) the ʺcircumstances

were directly related to the [applicantʹs] failure to file the application within the 1‐year

periodʺ; and (3) ʺthe delay was reasonable under the circumstances.ʺ

(a)(2)(i)(B), (a)(5). The IJ reasonably determined that while a serious illness like

PTSD may constitute extraordinary circumstances, Abankwahʹs diagnosis standing

alone did not establish that her seven‐year delay in filing was reasonable. Accordingly,

we lack jurisdiction to review Abankwahʹs extraordinary circumstances claim.

4 B. Withholding of Removal

An alien is ineligible for withholding of removal if ʺthe alien, having been

convicted by a final judgment of a particularly serious crime is a danger to the

community of the United States.ʺ

(b)(3)(B)(ii). Certain aggravated

felonies are per se particularly serious crimes.

§ 1231(b)(3)(B) (for purposes of

withholding of removal, an aggravated felony ʺfor which the alien has been sentenced

to an aggregate term of imprisonment of at least 5 yearsʺ is a particularly serious crime).

Additionally, the agency may find that any crime, including a crime that is not an

aggravated felony, is particularly serious. Nethagani v. Mukasey,

, 155‐57 (2d

Cir. 2008). Abankwah has not been convicted of a per se particularly serious crime

because her term of imprisonment did not exceed five years.

(b)(3)(B).

The BIA has held that the determination of whether an individual poses a

danger to the community is subsumed in the analysis of whether the crime is

particularly serious; this Court has deferred to that holding under Chevron, U.S.A., Inc.

v. Natural Resources Defense Council, Inc.,

(1984). See Flores v. Holder,

(2d Cir. 2015) (ʺWe have accorded Chevron deference . . . to the BIAʹs

interpretation that no separate danger to the community analysis is required when

determining whether a crime is particularly serious.ʺ); Nethagani,

n.1

(ʺ[T]he BIA has held that [an] alien [convicted of a particularly serious crime]

necessarily constitutes ʹa danger to the community of the United States.ʹ We have

5 accepted the BIAʹs interpretation of the statute.ʺ (citing Ahmetovic v. INS,

, 52‐

53 (2d Cir. 1995))). We are bound by these decisions ʺunless and until the precedents

established therein are reversed en banc or by the Supreme Court.ʺ United States v. Jass,

(2d Cir. 2009). Accordingly, Abankwahʹs contention that the agency

erred in not independently analyzing dangerousness fails as a matter of law.

Finally, we note that the agency conducted an individualized analysis,

and reasonably concluded that Abankwahʹs perjury convictions were particularly

serious. The IJ weighed the relevant factors and concluded that (1) perjury, though not

violent, is very serious by nature and can be an aggravated felony; and (2) the

circumstances and underlying facts of Abankwahʹs perjury convictions were

particularly egregious, because she ʺconcoct[ed] an elaborate story about [female genital

mutilation]ʺ and ʺperpetuated the false testimony at the BIA, the Second Circuit and in

the public.ʺ Abankwah, No. A074 881 776, at 13 (Immig. Ct. N.Y.C. Dec. 14, 2012). The

BIA agreed, stating that ʺ[t]he applicantʹs extensive fraud on this nationʹs courts strikes

at the heart of the countryʹs immigration laws and undermines the integrity of the entire

system.ʺ Abankwah, No. A074 881 776, at 3 (B.I.A. May 20, 2014). Both the IJ and the

BIA engaged in a case‐specific analysis, considered the totality of the circumstances,

and reached a reasonable conclusion that her perjury convictions were particularly

serious. Accordingly, the agency did not err in denying withholding of removal. See

Nethagani, 532 F.3d at 154‐55.

6 For the foregoing reasons, the petition for review is DISMISSED for lack

of jurisdiction with respect to asylum, and DENIED in remaining part with respect to

withholding of removal.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

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