Sudakova v. Holder

11-4071
Sudakova v. Holder
BIA
Laforest, IJ
A089 254 194
A089 254 228
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 18th day of April, two thousand fourteen.
PRESENT:
JON O. NEWMAN,
REENA RAGGI,
CHRISTOPHER F. DRONEY,
Circuit Judges.
INNA SUDAKOVA, YULIA NIKOLAENKO,
Petitioners,
v. 11-4071
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
FOR PETITIONERS: Amanda E. Gray, Kerry W. Bretz,
Jules E. Coven, Bretz & Coven, LLP,
New York, N.Y.
FOR RESPONDENT: Stuart F. Delery, Acting Assistant
Attorney General; John S. Hogan,
Senior Litigation Counsel; Edward E.
Wiggers, Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DISMISSED.
Inna Sudakova and Yulia Nikolaenko, natives of the
former Union of Soviet Socialist Republics and citizens of
Russia profess a fear of persecution if returned to Russia
based on the fact that they are lesbians. The women now
seek review of a September 16, 2011, decision of the BIA
reversing, in part, the July 20, 2009, decision of
Immigration Judge (“IJ”) Brigitte Laforest granting their
application for asylum and withholding of removal, and
remanding proceedings to the IJ. In re Inna Sudakova, Yulia
Nikolaenko, Nos. A089 254 194/228 (B.I.A. Sept. 16, 2011),
rev’g Nos. A089 254 194/228 (Immig. Ct. N.Y. City July 20,
2009). We assume the parties’ familiarity with the
underlying facts and procedural history in this case.
Under the circumstances of this case, we have reviewed
only the decision of the BIA. See Yan Chen v. Gonzales, 417
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F.3d 268, 271 (2d Cir. 2005). While Petitioners’ premature
petition for review has now ripened into a valid petition
for review, see Herrera-Molina v. Holder, 597 F.3d 128, 132
(2d Cir. 2010), 8 U.S.C. § 1158(a)(3) denies courts
jurisdiction to review the agency’s finding that an asylum
application was untimely under 8 U.S.C. § 1158(a)(2)(B), or
its finding of neither changed nor extraordinary
circumstances excusing the untimeliness under 8 U.S.C.
§ 1158(a)(2)(D). Notwithstanding that provision, we retain
jurisdiction to review constitutional claims and “questions
of law.” 8 U.S.C. § 1252(a)(2)(D); Xiao Ji Chen v. U.S.
Dep’t of Justice, 471 F.3d 315, 323-24 (2d Cir. 2006).
Here, the IJ concluded that Petitioners had established
changed circumstances excusing the untimeliness of their
asylum applications because a good friend of theirs in
Russia, who is also a lesbian, was so severely attacked that
she spent three days in a coma, and it was the severity of
that attack which led Petitioners to conclude that the
adverse conditions confronting homosexuals in Russia would
not change, and that they needed to seek asylum in the
United States. The BIA reversed, concluding that because
Petitioners had already experienced attacks in Russia based
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on their sexual orientation before they entered the United
States in 2006, and because their friend had also previously
been attacked, Petitioners “made no showing of changed
country conditions in Russia as to the treatment of
homosexuals.”
To the extent Petitioners fault the BIA for failing to
consider whether they had the requisite subjective fear
prior to the attack on their friend, and whether the attack
was more serious than the prior ones experiences, they are
challenging factual determinations over which we lack
jurisdiction. See 8 U.S.C. § 1158(a)(2)(B), (D); Xiao Ji
Chen, 471 F.3d at 329.
Petitioners assert that if the IJ’s changed
circumstances determination was factual, then the BIA’s
review should have been limited to clear error, making its
de novo review a legal error. Whether an applicant has
established changed circumstances that materially affect her
eligibility for asylum, see 8 U.S.C. § 1158(a)(2)(D), is a
mixed question of law and fact, in which the IJ’s
identification of the circumstances at issue is a factual
determination, reviewable by the BIA only for clear error,
but its conclusion that the identified circumstances
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constituted a change materially affecting the applicant’s
eligibility for asylum is a legal determination that the BIA
may review de novo. See Xiao Ji Chen, 471 F.3d at 323;
Matter of A-S-B-, 24 I. & N. Dec. 493, 496 (BIA 2008).
Here, the BIA did not improperly engage in de novo
review. Rather, accepting the facts regarding the
“triggering event,” i.e., the attack on Petitioners’ friend,
as found by the IJ, the BIA concluded, as a matter of law,
that the event did not materially affect Petitioners’
eligibility for asylum. See 8 U.S.C. § 1158(a)(2)(D).
Although a changed circumstances determination is in
part legal, not every petition for review of the agency’s
decision regarding changed circumstances necessarily raises
a question of law that allows us to exercise jurisdiction
pursuant to 8 U.S.C. § 1252(a)(2)(D). “[N]ot all legal
claims are included within the phrase ‘questions of law[]’”
and to use “the broadest meaning of ‘questions of law’ would
bring within [the Court’s] jurisdiction certain kinds of
claims that the INA otherwise remove[d].” Xiao Ji Chen, 471
F.3d at 325. Petitioners here assert that the BIA
misapplied the law in concluding that they could not
“establish changed circumstances because they were
previously attacked in Russia based on sexual orientation.”
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We do not construe this as a categorical pronouncement of
law, but rather as an assessment of the sufficiency of the
“changed circumstances” in this case. Thus, although
Petitioners assert that the BIA “misapplied the law,” their
argument really challenges only the correctness of the BIA’s
materiality conclusion, which does not raise a question of
law over which we have jurisdiction. See 8 U.S.C.
§§ 1158(a)(3), 1252(a)(2)(D); Xiao Ji Chen, 471 F.3d at 329.
For the foregoing reasons, the petition for review is
DISMISSED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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