Fisenko v. Lynch

• Decision Date: 01 April 2016
• Docket Number: No. 15-3418,15-3418
• Citation: 826 F.3d 287
• Parties: Milana Artashestovna Fisenko, Petitioner, v. Loretta E. Lynch, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

826 F.3d 287

Milana Artashestovna Fisenko, Petitioner

v.Loretta E. Lynch, Attorney General, Respondent.

No. 15-3418

United States Court of Appeals, Sixth Circuit.

Decided and Filed: April 1, 2016*

ON BRIEF: E. Dennis Muchnicki, Columbus, Ohio, for Petitioner. Ann M. Welhaf, United States Department of Justice, Washington, D.C., for Respondent.

Before: GRIFFIN and STRANCH, Circuit Judges; GWIN, District Judge.^**

OPINION

JANE B. STRANCH

, Circuit Judge.

In 2009, Milana Fisenko was denied asylum, withholding of removal, and protection under the Convention Against Torture (CAT). After Fisenko was subsequently granted withholding of removal, she moved for reconsideration of her asylum application under 8 C.F.R. § 1208.16(e)

, which the immigration judge (IJ) and the Board of Immigration Appeals (BIA) denied. We hold that the IJ properly denied the motion for reconsideration and thus DENY Fisenko's petition for review.

I. BACKGROUND

Milana Fisenko is a citizen of Russia who was admitted to the United States in August 2006 as a nonimmigrant student. She was born in Azerbaijan (then part of the U.S.S.R.), and is ethnically Armenian. Fisenko married one month after entering the United States, and her new husband added her to his asylum application as a derivative beneficiary. An IJ denied her husband's asylum application in October 2006. Around the same time, Fisenko's student status was terminated for nonattendance.

In October 2007, the Department of Homeland Security (DHS) charged Fisenko with removability under 8 U.S.C. § 1227(a)(1)(C)(i)

for failing to comply with the conditions of her nonimmigrant status. Fisenko appeared before an IJ in March 2008, conceded removability, and applied for asylum, withholding of removal, and CAT relief. Although Fisenko filed her application more than a year after arriving in the United States, rendering it time barred under 8 U.S.C. § 1158(a)(2)(B), she claimed that “extraordinary circumstances” excused the delay. Specifically, she argued, her attorney had advised her that she was covered by her husband's application—even though that application did not include her independent claims for asylum.

The IJ denied Fisenko's asylum application as untimely in June 2009. The IJ refused to grant an exception for “extraordinary circumstances” on the ground that “[a]s of October 2006, [Fisenko] was aware that her husband's application had been denied,” but “she waited nearly 18 more months before filing her application.” (A.R. at 172-74.) Although the IJ found that Fisenko had been subjected to persecution, he concluded that this persecution was not based on a protected characteristic. The IJ concluded, furthermore, that Fisenko had not shown a clear probability of future persecution based on a protected characteristic or torture if removed to Russia. Accordingly, the IJ denied withholding of removal and CAT relief.

Fisenko appealed to the BIA. The BIA dismissed Fisenko's appeal of the IJ's asylum decision. The BIA sustained Fisenko's appeal of the IJ's withholding of removal decision, however, concluding that she had demonstrated a clear probability of persecution based on her Armenian ethnicity, a protected characteristic. The BIA remanded to the IJ, who granted withholding of removal.

In September 2012, Fisenko moved for reconsideration of the IJ's order denying asylum. The IJ denied her motion, and the BIA dismissed Fisenko's appeal in March 2015. This appeal followed.

II. ANALYSIS

“Where the BIA reviews the immigration judge's decision and issues a separate opinion, rather than summarily affirming the [IJ]'s decision, we review the BIA's decision as the final agency determination.” Khalili v. Holder , 557 F.3d 429, 435 (6th Cir. 2009)

. To the extent that the BIA adopted the IJ's reasoning, we also review the IJ's decision. Id.

Fisenko appeals the BIA's decision to deny her motion for reconsideration, which we review under the abuse of discretion standard. Sswajje v. Ashcroft , 350 F.3d 528, 532 (6th Cir. 2003)

. The BIA abuses its discretion when its decision was “made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as invidious discrimination against a particular race or group.” Allabani v. Gonzales , 402 F.3d 668, 675 (6th Cir. 2005) (citation omitted). In conducting this analysis, “[q]uestions of law are reviewed de novo, but substantial deference is given to the BIA's interpretation of the INA and accompanying regulations.” Khalili , 557 F.3d at 435. That is, “[t]he BIA's interpretation of the statute and regulations will be upheld unless the interpretation is arbitrary, capricious, or manifestly contrary to the statute.” Id. (internal quotation marks omitted).

Fisenko's asylum application was dismissed as untimely. An asylum applicant must “demonstrate[ ] by clear and convincing evidence that the 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)

. Nevertheless, the agency may consider the application if the applicant demonstrates “either the existence of changed circumstances which materially affect the applicant's eligibility for asylum or extraordinary circumstances relating to the delay in filing an application within” one year. Id. § 1158(a)(2)(D). Our jurisdiction to review asylum applications denied as untimely is limited. Id. § 1158(a)(3). We may review appeals based on “constitutional claims or matters of statutory construction,” but we may not review “discretionary or factual questions.” Vincent v. Holder , 632 F.3d 351, 353 (6th Cir. 2011).

Fisenko does not appeal the BIA's determination that her asylum application was untimely. Instead, Fisenko argues that 8 C.F.R. § 1208.16(e)

required the IJ to reconsider the timeliness decision after she was granted withholding of removal. That regulation provides:

Reconsideration of discretionary denial of asylum. In the event that an applicant is denied asylum solely in the exercise of discretion, and the applicant is subsequently granted withholding of deportation or removal under this section, thereby effectively precluding admission of the applicant's spouse or minor children following to join him or her, the denial of asylum shall be reconsidered.

8 C.F.R. § 1208.16(e)

. Whether denials based on untimeliness are encompassed within § 1208.16(e) —that is, whether such denials are “solely in the exercise of discretion”—is a matter of statutory construction that we may review.

We have identified only two published decisions in which an asylum applicant appealed an IJ's failure to reconsider under § 1208.16(e)

. See

Huang v. I.N.S. , 436 F.3d 89 (2d Cir. 2006) ; In re T

–

Z

– , 24 I. & N. Dec. 163 (BIA 2007). Three other cases mention the regulation in passing. See

Zozan v. Holder , 507 Fed.Appx. 521, 522 (6th Cir. 2012) ; Dieng v. Holder , 698 F.3d 866, 874 n.5 (6th Cir. 2012) ; Arif v. Mukasey , 509 F.3d 677, 682 (5th Cir. 2007). None of these decisions indicate, in ruling or in dicta, that § 1208.16(e) applies to asylum denials based on untimeliness. Rather, all of these cases address a much different situation: IJ decisions to deny asylum despite finding that the applicant was statutorily eligible for such relief.

“Statutory and regulatory eligibility for asylum, whether based on past persecution or a well-founded fear of future persecution, does not necessarily compel a grant of asylum.” In re H – , 21 I. & N. Dec. 337, 347 (BIA 1996)

. Even if the asylum applicant demonstrates statutory eligibility for asylum, “the IJ may, in his discretion, deny asylum.” Yu v. Ashcroft , 364 F.3d 700, 702 (6th Cir. 2004) ; see also 8 C.F.R. § 1208.14. Thus, evaluating an asylum application “involves a two-step inquiry: (1) whether the applicant qualifies as a ‘refugee’ as defined in 8 U.S.C. § 1101(a)(42)(A), and (2) whether the applicant ‘merits a favorable exercise of discretion by the [IJ].’ ” Kouljinski v. Keisler , 505 F.3d 534, 541 (6th Cir. 2007) (citation omitted). The BIA has long called denials at the second step “discretionary denials of asylum”—the exact phrase used in the title to § 1208.16(e). See 8 C.F.R. § 1208.16(e) (titling the provision “[r]econsideration of discretionary denial of asylum”); see also, e.g. , In re T

–

Z

– , 24 I. & N. Dec. at 163–64 ; In re A

–

H

– , 23 I. & N. Dec. 774, 780 (2005) ; Matter of Salim , 18 I. & N. Dec. 311, 315 (BIA 1982) (noting that the BIA “had never before considered a discretionary denial of asylum relief” and setting out factors to be considered in this determination). The federal courts have also used this phrase to describe denials at the second step. See, e.g. , Zuh v. Mukasey , 547 F.3d 504, 506–08 (4th Cir. 2008) ; Kouljinski , 505 F.3d at 541–43 ; Huang , 436 F.3d at 94–95 ; Kalubi v. Ashcroft , 364 F.3d 1134, 1135 (9th Cir. 2004) ; Doherty v. U.S. Dep't of Justice , 908 F.2d 1108, 1120 (2d Cir. 1990) (“A decade of practice confirms that the board's discretionary denials of asylum to otherwise eligible candidates have been primarily for reasons of administrative fairness and efficiency....”); Estrada v. I.N.S. , 775 F.2d 1018, 1021 (9th Cir. 1985).

This connection between § 1208.16(e)

and the “discretionary denial of asylum” term of art is more than inferential. Indeed, the history of § 1208.16(e) reveals a direct link between the two. In 1987, the Department of Justice proposed revisions to the regulations governing the asylum process, 8 C.F.R. § 208.13 et seq .¹

See 52 Fed. Reg. 32,552 (Aug. 28, 1987). The proposal included 8 C.F.R. § 208.13, which governed the “[a]pproval or denial of [an asylum] application.” Id. at *32,557. Proposed § 208.13(a) (what is now 8 C.F.R. § 1208.14(a) ) provided that “[t]he Asylum Officer shall exercise discretion to grant or deny asylum to an applicant who qualifies as a refugee.” Proposed § 208.13(d) expanded on subsection (a) and provided a non-exhaustive list of “factors to be considered in discretionary grants...