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.

(b)(2)(E)(iii), (vi). 2 withholding of removal and CAT relief. Yueqing Zhang v.

Gonzales,

, 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,

(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,

(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.

(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,

(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.

(a)(2)(D);

(a)(5) For example, “unaccompanied alien children” or

“unaccompanied minors” are excused from filing for asylum

within the one-year period.

(a)(2)(E);

(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.”

(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

(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-,

(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,

(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

(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,

(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,

(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

(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.

(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

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