Samir Lamichhane v. Jefferson Sessions , 694 F. App'x 562 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 25 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SAMIR LAMICHHANE, No. 14-70242
Petitioner, Agency No. A200-983-663
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted July 14, 2017
San Francisco, California
Before: GRABER and FRIEDLAND, Circuit Judges, and FOGEL,** District
Judge.
Samir Lamichhane petitions for judicial review of (1) the decision by the
Board of Immigration Appeals (“BIA”) that his asylum application is time-barred,
and (2) its conclusion that his claim for withholding fails on the merits.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Jeremy D. Fogel, Senior United States District Judge
for the Northern District of California, sitting by designation.
1. An alien is ineligible to apply for asylum unless he “demonstrates by clear
and convincing evidence that the [asylum] application has been filed within 1 year
after the date of the alien’s arrival in the United States.” 8 U.S.C. § 1158(a)(2)(B).
We lack jurisdiction to review a determination that an asylum application was
untimely. See id. § 1158(a)(3). This limitation on judicial review does not,
however, preclude review of questions of law, including the application of law to
undisputed facts. See id. § 1252(a)(2)(D); Khunaverdiants v. Mukasey, 548 F.3d
760, 764-65 (9th Cir. 2008). But here there are disputed facts as to whether
Lamichhane filed his application within one year of his arrival. Cf.
Khunaverdiants, 548 F.3d at 765-66. Accordingly, we lack jurisdiction to consider
the timeliness dispute.
2. An alien may not be removed to a country if his “life or freedom would be
threatened in that country because of the alien’s race, religion, nationality,
membership in a particular social group, or political opinion.” 8 U.S.C.
§ 1231(b)(3)(A). The BIA concluded that Lamichhane had not shown that three of
the incidents of alleged persecution had occurred because of his political opinion.
As part of its analysis on the merits of Lamichhane’s asylum claim (as an
alternative to its untimeliness holding), the BIA explained that Lamichhane had
failed to establish that his political opinion was “at least one central reason” for the
harm he suffered. The BIA provided no separate analysis of Lamcihhane’s
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withholding claim but instead stated that, because Lamichhane had failed to satisfy
the requirements for an asylum claim, he necessarily had also failed to meet the
more stringent requirements for a withholding claim.
We recently held in Barajas-Romero v. Lynch, 846 F.3d 351, 358-59 (9th
Cir. 2017), that the “one central reason” standard applies to claims for asylum but
not to those for withholding of removal. The BIA thus erred by implicitly applying
the “one central reason” standard to Lamichhane’s withholding claim.
Nevertheless, remand for reconsideration under the proper standard is unnecessary
in this case because the BIA did not find that Lamichhane’s political opinion was
even a partial reason for the three incidents; it concluded instead that they were
unrelated to Lamichhane’s political opinion. Substantial evidence supports this
conclusion.
Petition DISMISSED in part and DENIED in part.
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