17-1496 Pantelica v. Barr 17-1496 Pantelica v. Barr BIA Hom, IJ A201 162 692/694 A201 290 725/726/727 A201 198/ 445/446/447

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 13th day of August, two thousand nineteen. 5 6 PRESENT: 7 JOHN M. WALKER, JR., 8 PETER W. HALL, 9 RAYMOND J. LOHIER, JR., 10 Circuit Judges. 11 _____________________________________ 12 13 LENUTA PANTELICA, PATRIZIA 14 PANTELICA, NICU SORIN PANTELICA, 15 CRISTINA PANTELICA, MARIAN 16 PANTELICA, AKA MARIN PANTELICA, 17 CONSTANTIN PANTELICA, AKA 18 CONSTANIN PANTELICA, MIHAELA 19 ELENA DUMITRASCU, AKA MIHAELA 20 ELENA PANTELICA, ARIANNA 21 PANTELICA, 22 Petitioners, 23 24 v. 17-1496 25 NAC 26 WILLIAM P. BARR, UNITED STATES 27 ATTORNEY GENERAL, 28 Respondent. 29 _____________________________________ 1 FOR PETITIONERS: David Garth Sullivan, New York, 2 NY. 3 4 FOR RESPONDENT: Chad A. Readler, Acting Assistant 5 Attorney General; Anthony C. 6 Payne, Assistant Director; Yedidya 7 Cohen, Trial Attorney, Office of 8 Immigration Litigation, United 9 States Department of Justice, 10 Washington, DC. 11 12 UPON DUE CONSIDERATION of this petition for review of a

13 Board of Immigration Appeals (“BIA”) decision, it is hereby

14 ORDERED, ADJUDGED, AND DECREED that the petition for review

15 is DENIED.

16 Lenuta Pantelica, Nicu Pantelica, Constantin Pantelica,

17 and their derivative beneficiaries1 (“petitioners”), natives

18 and citizens of Romania, seek review of an April 12, 2017,

19 decision of the BIA affirming an April 19, 2016, decision of

20 an Immigration Judge (“IJ”) denying their applications for

21 asylum, withholding of removal, and relief under the

22 Convention Against Torture (“CAT”). In re Lenuta Pantelica

23 et al., Nos. A 201 162 692/ A201 290 725 / A201 198 445 (B.I.A.

24 Apr. 12, 2017), aff’g Nos. A 201 162 692 / A201 290 725 / A201

25 198 445 (Immig. Ct. N.Y. City Apr. 19, 2016). We assume the

26 parties’ familiarity with the underlying facts and procedural

1 The derivative beneficiaries associated with this petition are Patrizia Pantelica (A201 162 694), Cristina Pantelica (A201 290 726), Marian Pantelica (A201 290 727), Mihaela Elena Dumitrascu (A201 198 446), and Arianna Pantelica (A201 198 447). 2 1 history in this case.

2 Asylum: One-Year Filing Deadline

3 An alien is ineligible for asylum “unless the alien

4 demonstrates by clear and convincing evidence that the

5 application has been filed within 1 year after the date of

6 the alien’s arrival in the United States.” 8 U.S.C.

7 § 1158(a)(2)(B). An application may be considered outside

8 the one-year deadline, however, “if the alien demonstrates

9 . . . the existence of changed circumstances which

10 materially affect the applicant’s eligibility for asylum or

11 extraordinary circumstances relating to the delay,” id.

12 § 1158(a)(2)(D), and the application is filed within a

13 reasonable time,

(a)(4)(ii), (a)(5). Our

14 jurisdiction to review the agency’s findings regarding the

15 timeliness of an asylum application and the circumstances

16 excusing the untimeliness is limited to “constitutional

17 claims or questions of law.” See

(a)(3),

18 1252(a)(2)(D).

19 Lenuta concedes that she “formally filed” her asylum

20 application in September 2012, but asserts that the agency

21 overlooked that she timely lodged her application on March 5,

22 2012. Although her argument implicates questions of law,

23 i.e., what constitutes filing of an application and whether

3 1 the agency ignored evidence, her argument lacks merit.

2 Lenuta does not dispute that she first entered the United

3 States on March 30, 2011. Her asylum application was dated

4 March 1, 2012, which, had it been filed then, would have been

5 timely. See

(a)(2)(B) (setting one-year

6 deadline). Lenuta, however, did not submit her asylum

7 application to the IJ until August 2012, which was well beyond

8 the one-year filing period. See

(“Filing

9 means the actual receipt of a document by the appropriate

10 Immigration Court”), 1208.4(a)(2)(ii) (explaining that asylum

11 application “is considered to have been filed on the date it

12 is received by the Immigration Court”). Because there is

13 nothing in the record to establish that Lenuta filed her

14 asylum application in the immigration court earlier than

15 August 2012, the agency did not commit legal error in

16 determining that her application was untimely.

17 Unexhausted Claims

18 The remainder of the claims raised in the briefs are

19 unexhausted. The petitioners assert that (1) the IJ erred

20 by failing to inquire about whether any exceptions to the

21 one-year deadline applied to Constantin’s untimely asylum

22 application; and (2) the IJ failed to develop the record

23 regarding the mistreatment of Gypsies in Romania by

4 1 consulting “readily available” country conditions reports.

2 Before the BIA, the petitioners raised two distinct

3 arguments. Namely, that the IJ’s adverse credibility

4 determination was erroneous, and that their testimony,

5 “without more,” was sufficient to sustain their burden of

6 proof. The petitioners’ new claims are therefore

7 unexhausted, and we decline to consider them. See 8 U.S.C.

8 § 1252(d)(1); Lin Zhong v. U.S. Dep’t of Justice,

(2d Cir. 2007) (providing that judicially imposed

10 issue exhaustion is mandatory); see also Severino v. Mukasey,

11

(2d Cir. 2008) (“[A]n alien must raise

12 procedural defects that the BIA has the power to correct”).

13 Even if we were to reach these claims, it is an applicant’s

14 burden to establish timely filing and to document his or her

15 asylum claim. See

(a)(2)(B) & (D),

16 (b)(1)(B)(i); Chuilu Liu v. Holder,

(2d

17 Cir. 2009) (“[W]hile we have sometimes remanded a case if the

18 IJ failed to explain his reliance on a lack of corroborating

19 evidence, the alien bears the ultimate burden of introducing

20 such evidence without prompting from the IJ.”); see also In

21 re S-M-J-,

(B.I.A. 1997).

22 For the foregoing reasons, the petition for review is

23 DENIED. As we have completed our review, any stays of removal

5 1 that the Court previously granted in this petition are

2 VACATED, and any pending motion for stays of removal in this

3 petition is DISMISSED as moot. Any pending request for oral

4 argument in this petition is DENIED in accordance with Federal

5 Rule of Appellate Procedure 34(a)(2), and Second Circuit

6 Local Rule 34.1(b).

7 FOR THE COURT: 8 Catherine O’Hagan Wolfe, 9 Clerk of Court 10

6