18-735 Lopez-Garcia v. Barr BIA Nelson, IJ A099 479 858 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 10th day of December, two thousand twenty. 5 6 PRESENT: 7 REENA RAGGI, 8 RICHARD C. WESLEY, 9 RAYMOND J. LOHIER, JR, 10 Circuit Judges. 11 _____________________________________ 12 13 GILMER ANTONIO LOPEZ-GARCIA, 14 Petitioner, 15 16 v. 18-735 17 NAC 18 WILLIAM P. BARR, UNITED STATES 19 ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Matthew C. Lamb, Pryor Cashman 24 LLP, New York, NY. 25 26 Keith M. Rosen, Norton Rose 27 Fulbright US LLP, New York, NY. 28 1 FOR RESPONDENT: Cindy S. Ferrier, Assistant 2 Director; Andrew N. O’Malley, 3 Senior Litigation Counsel, Office 4 of Immigration Litigation, United 5 States Department of Justice, 6 Washington, DC.

7 UPON DUE CONSIDERATION of this petition for review of a

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

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

10 is GRANTED.

11 Petitioner Gilmer Antonio Lopez-Garcia, a citizen of

12 Guatemala, seeks review of a February 14, 2018 decision of

13 the BIA affirming a January 4, 2017 decision of an Immigration

14 Judge (“IJ”) pretermitting his asylum application as untimely

15 filed. In re Gilmer Antonio Lopez-Garcia, No. A 099 479 858

16 (BIA Feb. 14, 2018), aff’g No. A 099 479 858 (Immig. Ct. N.Y.

17 City Jan. 4, 2017). We assume the parties’ familiarity with

18 the underlying facts and procedural history.

19 We review the IJ’s decision as modified and supplemented

20 by the BIA. Wala v. Mukasey,

(2d Cir.

21 2007). An asylum application generally must be filed within

22 one year of entry.

(a)(2)(B). This time

23 limit may be excused based on “either the existence of changed

24 circumstances which materially affect the applicant’s

2 1 eligibility for asylum or extraordinary circumstances

2 relating to the delay in filing.”

§ 1158(a)(2)(D). When

3 the time limit is excused, an application must be filed

4 “within a reasonable period given” any “changed” or

5 “extraordinary” circumstances. 8 C.F.R.

6 §§ 1208.4(a)(4)(ii), (a)(5). Our jurisdiction to review

7 findings regarding timeliness or reasonableness of delay

8 given changed or extraordinary circumstances is limited to

9 “constitutional claims or questions of law,” see 8 U.S.C.

10 §§ 1158(a)(3), 1252(a)(2)(D), and we review such claims de

11 novo, Pierre v. Holder,

(2d Cir. 2009).

12 With these standards in mind, we conclude that Lopez-

13 Garcia has raised a meritorious claim, based entirely on a

14 question of law, and is entitled to remand. In particular,

15 the BIA engaged in improper factfinding when it reviewed a

16 different time period than the IJ in determining the

17 reasonableness of Lopez-Garcia’s filing delay.

18 The issue raised turns on the BIA’s review of the IJ’s

19 decision. The BIA reviews factual findings “only to

20 determine whether the findings of the immigration judge are

21 clearly erroneous,” and it reviews de novo “questions of law,

3 1 discretion, and judgment and all other issues in appeals from

2 [IJ] decisions.”

(d)(3)(i), (ii). “Except

3 for taking administrative notice of commonly known

4 facts . . . or the contents of official documents, the Board

5 will not engage in factfinding in the course of deciding

6 appeals.”

§ 1003.1(d)(3)(iv). And when the BIA engages

7 in improper factfinding, it commits an error of law. Padmore

8 v. Holder,

(2d Cir. 2010).

9 The IJ found that Lopez-Garcia’s January 2010 HIV

10 diagnosis was a qualifying change in circumstances, and the

11 controlling filing date for his asylum application was April

12 2013, when he submitted his application after proceedings

13 were reopened. The BIA agreed that the HIV diagnosis could

14 constitute changed circumstances, but determined that the

15 operative filing date was September 2011, when Lopez-Garcia

16 filed his motion to reopen, which included his application

17 for asylum.

18 What constitutes “filing” under the statute and

19 regulations is a legal issue that the BIA properly reviewed

20 de novo. See

(d)(3)(ii) (“The [BIA] may

21 review questions of law . . . de novo.”); see also 8 C.F.R.

4 1 § 1003.2(c)(1) (“A motion to reopen proceedings for the

2 purpose of submitting an application for relief must be

3 accompanied by the appropriate application for relief and all

4 supporting documentation.”). But once the BIA made this

5 legal determination, it erred in evaluating de novo the

6 reasonableness of Lopez-Garcia’s 18-month filing delay from

7 January 2010 to September 2011, a substantially shorter

8 period than the January 2010 to April 2013 delay that the IJ

9 considered. The IJ’s factual findings are subject to review

10 only for clear error, and the BIA may not find facts in the

11 first instance. See

(d)(3)(i), (iv). As

12 we have explained, a determination “as to whether a petitioner

13 has established ‘changed’ or ‘extraordinary’

14 circumstances . . . entails . . . a ‘predominantly factual’

15 inquiry,” as well as a “discretionary determination.” Xiao

16 Ji Chen v. U.S. Dep’t of Justice,

(2d Cir.

17 2006); see Matter of T-M-H- & S-W-C-,

(BIA 2010) (remanding to the IJ to make additional findings

19 of fact as to whether the petitioner’s filing after changed

20 circumstances was reasonable); see also 8 C.F.R.

21 §§ 1208.4(a)(4), (5) (defining “changed circumstances” and

5 1 “extraordinary circumstances” and providing a non-exhaustive

2 list of what circumstances should be considered in

3 determining whether a filing delay is reasonable).

4 The IJ commented that “[p]erhaps [Lopez-Garcia’s] mental

5 and psychological issues are sufficient to excuse the

6 lateness of his filing his application for asylum within one

7 year of entry . . . [but] they are [not] sufficient to excuse

8 his delay in filing until 2013 when he clearly had been able

9 to take steps to regularize his status in 2009 or 2010.” S.

10 App’x 9. The IJ further commented that Lopez-Garcia had

11 mental health issues following his 2010 HIV diagnosis. Both

12 of these comments indicate that the IJ may have engaged in a

13 different factual analysis if faced with the correct and

14 shorter time frame of January 2010 to September 2011.

15 While it is true that the BIA may review de novo the

16 ultimate reasonableness of the delay in filing, it must apply

17 that legal standard to the facts as found by the IJ. See 8

(d)(3)(iv) (“Except for taking administrative

19 notice of commonly known facts such as current events or the

20 contents of official documents, the Board will not engage in

21 factfinding in the course of deciding appeals.”); see Weinong

6 1 Lin v. Holder,

(2d Cir. 2014) (“[T]he BIA

2 has no power to find facts.”). Here, it is unclear how the

3 IJ would have assessed the facts of a substantially shorter

4 timeline. Compounding its error, the BIA provided no

5 reasoning for its independent conclusion that the delay was

6 unreasonable. See Poradisova v. Gonzales,

, 77

7 (2d Cir. 2005) (“We require a certain minimum level of

8 analysis from the IJ and BIA . . . if judicial review is to

9 be meaningful.”). Accordingly, the BIA should have remanded

10 to the IJ to consider in the first instance whether the

11 shorter period was reasonable. See 8 C.F.R.

12 § 1003.1(d)(3)(iv) (“If further factfinding is needed in a

13 particular case, the Board may remand the proceeding to the

14 immigration judge . . . .”).

15 For the foregoing reasons, the petition for review is

16 GRANTED and the case is REMANDED for further proceedings

17 consistent with this order. All pending motions and

18 applications are DENIED and stays VACATED.

19 FOR THE COURT: 20 Catherine O’Hagan Wolfe, 21 Clerk of Court

7