Jalloh v. Holder ( 2014 )

12-4930
Jalloh v. Holder
BIA
Hom, IJ
A078 216 941
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 United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 16th day of October, two thousand fourteen.
5
6 PRESENT:
7 ROSEMARY S. POOLER,
8 BARRINGTON D. PARKER,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _____________________________________
12
13 RAMATA JALLOH,
14 Petitioner,
15
16 v. 12-4930
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Andy Wong, New York,N.Y.
24
25 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
26 General; Luis E. Perez, Senior
27 Litigation Counsel; Timothy B.
28 Stanton, Trial Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is GRANTED.
5 Petitioner Ramata Jalloh, a native and citizen of
6 Sierra Leone, seeks review of a November 20, 2012, order of
7 the BIA, affirming the January 25, 2011, decision of
8 Immigration Judge (“IJ”) Sandy Hom, which denied her
9 application for asylum and request for relief under the
10 Convention Against Torture (“CAT”), and granted her request
11 for withholding of removal. In re Ramata Jalloh, No. A078
12 216 941 (B.I.A. Nov. 20, 2012), aff’g No. No. A078 216 941
13 (Immig. Ct. New York City Jan. 25, 2011). We assume the
14 parties’ familiarity with the underlying facts and
15 procedural history in this case.
16 Under the circumstances of this case, we review the
17 IJ’s decision as modified by the BIA decision. See Yang v.
18 U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).
19 I. Jurisdiction
20 Our jurisdiction to review orders of removal is limited
21 to review of “final order[s] of removal.” 8 U.S.C.
22 § 1252(a)(1). An order of removal is “final” upon the
23 earlier of the BIA’s affirmance of the immigration judge’s
2
1 order of removal or the expiration of the time to appeal the
2 immigration judge’s order of removal to the BIA. 8 U.S.C.
3 § 1101(a)(47)(B)(i), (ii); see Arias Chupina v. Holder, 570
4 F.3d 99, 103 (2d Cir. 2009). The BIA has concluded that
5 when a case is remanded to the IJ for the completion of
6 background checks pursuant to 8 C.F.R. § 1003.47(h), the IJ
7 has full jurisdiction over the case and “no final order
8 exists.” Matter of M-D-, 24 I. & N. Dec. 138, 141 (BIA
9 2007); see also Vakker v. Attorney General of U.S., 519 F.3d
10 143, 147 (3d Cir. 2008) (holding that when the BIA remands a
11 case to the IJ for background checks pursuant to 8 C.F.R.
12 § 1003.47(h), the IJ’s decision following remand becomes the
13 “final order” of removal).
14 Here, the BIA remanded for background checks and
15 security investigation pursuant to 8 C.F.R. § 1003.47(h).
16 Thus, at the time Jalloh petitioned for review in this
17 Court, the order of removal was not final and the Court
18 lacked jurisdiction to consider the petition. See Matter of
19 M-D-, 24 I. & N. Dec. at 141. However, a premature
20 petition for review from a non-final order of removal may be
21 cured, and ripen into a valid petition for review, if a
22 final order of removal has been entered by the time the
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1 petition is heard, and the government suffers no prejudice.
2 See Herrera-Molina v. Holder, 597 F.3d 128, 132 (2d Cir.
3 2010). The IJ issued an order of removal on March 13, 2013,
4 and the government agrees that a final order now exists and
5 the case is ripe for review. As a result, Jalloh’s
6 premature petition for review has now ripened into a valid
7 petition for review which we may consider on the merits.
8 See Herrera-Molina, 597 F.3d at 132.
9 II. Merits
10 An asylum applicant must demonstrate by clear and
11 convincing evidence that she filed her application within
12 one year after the date of arrival in the United States. 8
13 U.S.C. § 1158(a)(2)(B). The law provides an exception to
14 the one-year bar if the applicant demonstrates either
15 changed or extraordinary circumstances. 8 U.S.C.
16 § 1158(a)(2)(D). Under 8 U.S.C. § 1158(a)(3), no court
17 shall have jurisdiction to review the agency’s finding that
18 an asylum application was untimely under 8 U.S.C.
19 § 1158(a)(2)(B), or its finding of neither changed nor
20 extraordinary circumstances excusing the untimeliness under
21 8 U.S.C. § 1158(a)(2)(D). However, the Court retains
22 jurisdiction to review constitutional claims and questions
4
1 of law. 8 U.S.C. § 1252(a)(2)(D). The “proper
2 interpretation of the one-year deadline provision” presents
3 a question of law, see Joaquin-Porras v. Gonzales, 435 F.3d
4 172, 178 (2d Cir. 2006), as does the application of an
5 exception to the one-year filing deadline. See Shi Jie Ge
6 v. Holder, 588 F.3d 90, 94 (2d Cir. 2009).
7 In this case, Jalloh raises two questions of law:
8 (1) whether the agency used the proper legal standard to
9 find that her original claim, based on her rape by rebels,
10 was untimely; and (2) whether her claim based on forced
11 female genital mutilation (“FGM”) was subject to the one-
12 year bar at all, given that the BIA reopened sua sponte
13 because she demonstrated ineffective assistance of counsel.
14 Because of agency errors, we remand.
15 A. Original Asylum Application
16 Jalloh filed her asylum application in March 2000,
17 prior to the 2005 REAL ID Act. Accordingly, pre-REAL ID Act
18 law, including the requirements for credibility findings
19 established in Secaida-Rosales v. I.N.S., 331 F.3d 297 (2d
20 Cir. 2003), applies to her testimony regarding her date of
21 entry. See Liang Chen v. U.S. Att’y Gen., 454 F.3d 103, 107
22 n.2 (2d Cir. 2006) (noting that Secaida-Rosales “remain[s]
23
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1 good law with regard to asylum applications filed before May
2 11, 2005”).
3 In pre-REAL ID Act cases, an adverse credibility
4 determination must be based on “specific, cogent reasons”
5 that “bear a legitimate nexus” to the finding, and any
6 discrepancy must be “substantial” when measured against the
7 record as a whole. See Secaida-Rosales, 331 F.3d at 307.
8 Inconsistencies need not be fatal if they are “minor and
9 isolated,” and the testimony is otherwise generally
10 consistent, rational, and believable. See Diallo v. INS,
11 232 F.3d 279, 288 (2d Cir. 2000).
12 The IJ found Jalloh’s testimony not credible regarding
13 her date of entry based on three findings: (1) Jalloh
14 testified she left Guinea on January 25, 1999, was on a boat
15 for two weeks, and yet could not explain how that resulted
16 in her arrival on February 10, 2000; (2) Jalloh testified in
17 2010 that she traveled to New York with two other stowaways,
18 but in 2001 testified she traveled with t-shirt vendors, and
19 her explanation was unconvincing; and (3) Jalloh testified
20 in 2010 that she arranged to leave Guinea “upon a payment of
21 money,” but in 2001 testified that she traveled without
22 paying any money. The BIA relied upon these same three
23 findings. However, these discrepancies are not supported by
6
1 the record and are not “substantial” as required under
2 Secaida-Rosales.
3 B. Updated Asylum Application
4 Jalloh alleged that she entered the United States in
5 2000, and applied for asylum based on her forced FGM claim
6 in 2009. She argues that the BIA’s reopening of her
7 proceedings sua sponte to present her FGM claim, and
8 ineffective assistance of counsel, constitute extraordinary
9 circumstances that toll the filing deadline. The government
10 argues that the issue is unexhausted, as it was not raised
11 before the BIA.
12 We generally require that petitioners raise to the BIA
13 the specific issues they later raise in this Court. See
14 Foster v. INS, 376 F.3d 75, 78 (2d Cir. 2004); Zhong v. U.S.
15 Dep’t of Justice, 480 F.3d 104, 119-20 (2d Cir. 2007).
16 However, the Court has never held that a petitioner is
17 limited to the “exact contours” of his argument to the
18 agency. Gill v. INS, 420 F.3d 82, 85-86 (2d Cir. 2005). On
19 the contrary, the Court has held that 8 U.S.C. § 1252(d)(1)
20 does not prevent it from considering “specific, subsidiary
21 legal arguments or arguments by extension,” even if those
22 arguments were not presented below. Id. at 86; see also
23 Restrepo v. McElroy, 369 F.3d 627, 633 n.10 (2d Cir. 2004)
7
1 (stating that the Court “enjoy[s] broad discretion to
2 consider subsidiary legal arguments that were not
3 specifically raised below”). Here, we conclude that
4 Jalloh’s argument that she demonstrated an extraordinary
5 circumstance tolling the one-year filing deadline is a
6 subsidiary argument of her challenge to the agency’s
7 pretermission of her asylum application, and we deem the
8 argument exhausted.
9 The BIA’s 2008 order stated that it was reopening in an
10 exercise of sua sponte authority “to resolve any issue
11 regarding the relevant time and number bars” and held that
12 Jalloh had demonstrated ineffective assistance of counsel.
13 The BIA exercises sua sponte authority only in
14 “extraordinary circumstances.” See Johnson v. Ashcroft, 378
15 F.3d 164, 171 n.8 (2d Cir. 2004). Ineffective assistance of
16 counsel can constitute an extraordinary circumstance. See 8
17 C.F.R. § 1208.4(a)(5)(iii); Ivanishvili v. U.S. Dep’t of
18 Justice, 433 F.3d 332, 338 (2d Cir. 2006). The BIA’s very
19 act of reopening sua sponte demonstrated an extraordinary
20 circumstance that tolled the time for filing the claim.
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1 For the foregoing reasons, the petition for review is
2 GRANTED and the case is REMANDED to the BIA for further
3 proceedings consistent with this order.
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe, Clerk
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