20-1840 Perez Nagahama v. Garland BIA Straus, IJ A208 484 537

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 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 30th day of November, two thousand twenty- 5 two. 6 7 PRESENT: 8 RICHARD C. WESLEY, 9 JOSEPH F. BIANCO, 10 ALISON J. NATHAN, 11 Circuit Judges. 12 _____________________________________ 13 14 YUMIKO DARDANETT PEREZ NAGAHAMA, 15 AKA YUMIKO PEREZ, 16 Petitioner, 17 18 v. 20-1840 19 NAC 20 MERRICK B. GARLAND, UNITED 21 STATES ATTORNEY GENERAL, 22 Respondent. 23 _____________________________________ 24 25 26 FOR PETITIONER: Genet Getachew, Law Office of 27 Genet Getachew, Brooklyn, NY. 28 1 FOR RESPONDENT: Brian Boynton, Acting Assistant 2 Attorney General; Cindy S. 3 Ferrier, Assistant Director; 4 Timothy G. Hayes, Senior 5 Litigation Counsel, Office of 6 Immigration Litigation, United 7 States Department of Justice, 8 Washington, DC. 9 10 UPON DUE CONSIDERATION of this petition for review of a

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

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

13 is GRANTED in part and DENIED in part.

14 Petitioner Yumiko Dardanett Perez Nagahama, a native and

15 citizen of Peru, seeks review of a May 21, 2020, decision of

16 the BIA affirming an August 8, 2018, decision of an

17 Immigration Judge (“IJ”) denying her application for asylum,

18 withholding of removal, and relief under the Convention

19 Against Torture (“CAT”). In re Yumiko Dardanett Perez

20 Nagahama, No. A208 484 537 (B.I.A. May 21, 2020), aff’g No.

21 A208 484 537 (Immig. Ct. Hartford Aug. 8, 2018). We assume

22 the parties’ familiarity with the underlying facts and

23 procedural history.

24 We have reviewed the IJ’s decision as modified by the

25 BIA. See Xue Hong Yang v. U.S. Dep’t of Just.,

,

26 522 (2d Cir. 2005).

27

2 1 I. Asylum

2 We remand for the agency to conduct the required

3 factfinding and analysis regarding the reasonableness of

4 Perez Nagahama’s delay in filing her asylum claim following

5 her changed circumstances. An asylum applicant must file an

6 asylum “application . . . within 1 year after the date of .

7 . . arrival in the United States.”

(a)(2)(B).

8 There is an exception for “changed circumstances which

9 materially affect the applicant’s eligibility for asylum.”

10

§ 1158(a)(2)(D). Where there is such a change, the

11 applicant must file an application “within a reasonable

12 period given those ‘changed circumstances.’” 8 C.F.R.

13 § 1208.4(a)(4)(ii). The IJ concluded and the BIA assumed

14 that Perez Nagahama’s circumstances changed materially when

15 she began living as openly gay in April 2015. What is a

16 reasonable period for filing after a changed circumstance is

17 a fact-specific inquiry: IJs should make specific “findings

18 of fact with respect to the particular circumstances involved

19 in the delay of the respondents’ applications” to determine

20 the reasonableness of the delay. Matter of T-M-H- & S-W-C-,

21

, 195–96 (B.I.A. 2010).

22

3 1 Although our jurisdiction to review the agency’s denial

2 of an asylum claim as time barred is limited, Perez Nagahama

3 has raised a reviewable question of law that the agency failed

4 to apply the proper standard because it did not consider her

5 specific circumstances before concluding that her delay was

6 unreasonable. See

(a)(3), 1252(a)(2)(D);

7 Barco-Sandoval v. Gonzales,

(2d Cir. 2008)

8 (holding that question of law arises if agency applies “a

9 legally erroneous standard”). We review questions of law de

10 novo. Pierre v. Holder,

(2d Cir. 2009).

11 The agency did not conduct the required factfinding and

12 analysis. The IJ found that Perez Nagahama’s asylum

13 application was untimely because she did not apply within one

14 year of beginning to live as openly gay. The IJ did not make

15 the required determination as to whether Perez Nagahama’s

16 particular circumstances rendered the delay reasonable. See

17 T-M-H- & S-W-C-, 25 I. & N. Dec. at 195–96 (remanding for IJ

18 to consider whether 9-month to one-year delay in filing after

19 the birth of the child that prompted fear of persecution under

20 family planning policy was reasonable). The BIA affirmed the

21 IJ’s decision, stating that “upon consideration of

22 respondent’s change in lifestyle, the only changed

4 1 circumstance material to her asylum application, we determine

2 that the respondent has not presented a ‘rare case[] in which

3 a delay of one year or more may be justified because of

4 particular circumstances.’” A.R. 4.

5 Matter of T-M-H- & S-W-C- concluded that there is not

6 “an automatic one[-]year extension” following a change in

7 circumstance but acknowledged that there may be rare cases

8 “in which a delay of 1-year or more may be justified.” 25 I.

9 & N. Dec. at 195. Accordingly, the BIA remanded for the IJ

10 to make specific findings whether a delay of 9 months to a

11 year following the changed circumstance was reasonable.

12 at 195–96. The BIA directed the IJ to make specific “findings

13 of fact with respect to the particular circumstances involved

14 in the delay.” Id. at 195.

15 Here, the IJ did not make findings of facts regarding

16 the reasonableness of the delay in light of the attendant

17 circumstances. The BIA should have remanded to the IJ to

18 consider whether the delay was reasonable. See

1003.1(d)(3)(iv); see also Lopez-Garcia v. Barr,

573, 576 (2d Cir. 2020) (granting petition and remanding where

21 BIA determined, in the first instance, the reasonableness of

22 a delay following changed circumstances). Instead, the BIA

5 1 made its own factual determinations that Perez Nagahama

2 beginning to live as openly gay did not make her delay

3 reasonable and that the other facts she pointed to were not

4 related to this underlying changed circumstance. Compounding

5 this issue, the BIA gave no reasoning for its conclusion that

6 the relevant circumstance made her delay

7 unreasonable. See Poradisova v. Gonzales,

(2d

8 Cir. 2005) (“We require a certain minimum level of analysis

9 from the IJ and BIA ... if judicial review is to be

10 meaningful.”). Therefore remand is required as to Perez

11 Nagahama’s asylum claim.

12 II. Withholding of Removal and CAT

13 We deny the petition as to withholding of removal and

14 CAT relief. Perez Nagahama asserted a fear of persecution

15 and torture in Peru as a gay woman. An applicant for

16 withholding of removal and CAT relief has the burden to

17 establish that she will “more likely than not” suffer harm

18 rising to the level of persecution or torture. 8 C.F.R.

19 § 1208.16(b)(2), (c)(2). The BIA has defined persecution as

20 a “threat to the life or freedom of, or the infliction of

21 suffering or harm upon, those who differ in a way regarded as

22 offensive.” Matter of Acosta,

, 222

6 1 (B.I.A. 1985), overruled in part on other grounds, INS v.

2 Cardoza-Fonseca,

(1987). To justify relief, the

3 persecution must be sufficiently severe, rising above “mere

4 harassment.” Ivanishvili v. U.S. Dep’t of Justice,

(2d Cir. 2006). “Torture is defined as any act by

6 which severe pain or suffering, whether physical or mental,

7 is intentionally inflicted on a person . . . at the

8 instigation of or with the consent or acquiescence of a public

9 official or other person acting in an official capacity.”

10

(a)(1).

11 Perez Nagahama argues that her country conditions

12 evidence demonstrates that she will more likely than not be

13 persecuted or tortured. We review the agency’s factual

14 findings for substantial evidence and its conclusions of law

15 and application of law to facts de novo. See Scarlett v.

16 Barr,

(2d Cir. 2020). We find no error in

17 the agency’s conclusion that Perez Nagahama failed to

18 establish that she would more likely than not suffer harm

19 rising to the level of persecution or torture. The agency

20 reasonably concluded that, although Perez Nagahama could face

21 hardship in Peru because of her sexual orientation, the

22 evidence did not establish that she would “more likely than

7 1 not” be persecuted or tortured on the basis of her sexual

2 orientation. See

(b)(2), (c)(2),

3 1208.18(a)(1); Ivanishvili,

.

4 For the foregoing reasons, the petition for review is

5 GRANTED in part and REMANDED for further consideration of the

6 asylum claim and DENIED in remaining part as to withholding

7 of removal and CAT relief. All pending motions and

8 applications are DENIED and stays VACATED.

9 FOR THE COURT: 10 Catherine O’Hagan Wolfe, 11 Clerk of Court

8