                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                        JUN 27 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

PATRICK GAKERA THIONGO,                         No.    15-73638

                Petitioner,                     Agency No. A201-006-612

 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 June 13, 2018
                              Seattle, Washington

Before: GOULD and WATFORD, Circuit Judges, and ROTHSTEIN,** District
Judge.

      Petitioner Patrick Gakera Thiongo (Thiongo) is a native and citizen of

Kenya. Thiongo entered the United States in 2007 and overstayed his visa. In

2011, Thiongo filed applications for asylum, withholding of removal, and United



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Barbara Jacobs Rothstein, United States District Judge
for the Western District of Washington, sitting by designation.
Nations Convention Against Torture (CAT) relief. Reviewing the agency’s

decision for substantial evidence, we grant Thiongo’s petition in part, deny it in

part, and dismiss it in part.

       Thiongo argues that the immigration judge (IJ) erred by making an adverse

credibility finding that served as the basis for the IJ denying his withholding of

removal and CAT relief claims. This result was affirmed by the Board of

Immigration Appeals (BIA). An adverse credibility finding will be sustained if

substantial evidence supports the IJ’s determination, and if the BIA “highlight[ed]

specific and cogent reasons to support the adverse credibility finding.” Kin v.

Holder, 595 F.3d 1050, 1055 (9th Cir. 2010). The IJ’s adverse credibility

determination here was not supported by substantial evidence in the record. The IJ

stated that Thiongo’s inconsistencies about the harm he faced strongly weighed

against his claim, but the IJ did not “suggest any reason that [the IJ] found his

explanation not credible.” See Soto-Olarte v. Holder, 555 F.3d 1089, 1091 (9th

Cir. 2009). The IJ was required to explain why Thiongo’s plausible explanations

did not explain the inconsistencies, but the IJ did not do so. Id. The BIA similarly

did not “give [its] reasons for considering [Thiongo’s] explanation unpersuasive.”

Id. Because the agency did not address Thiongo’s explanations for the alleged

inconsistencies, the inconsistencies cannot serve as substantial evidence to find

Thiongo not credible. Id. at 1091–92. We grant Thiongo’s petition as to his


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withholding of removal and CAT relief claims, and remand to the agency on an

open record for further proceedings consistent with this disposition.

      Thiongo also argues that because of extraordinary and changed

circumstances, the IJ and BIA erred by not excusing the late filing of his asylum

application. Thiongo contends that the IJ and BIA did not consider his health

issues or incidents in Kenya when determining whether the exceptions to the one-

year filing deadline for asylum applications applied. We have limited jurisdiction

to review IJ and BIA’s determinations related to the exceptions to the one-year bar

for asylum applications. Tamang v. Holder, 598 F.3d 1083, 1088 (9th Cir. 2010).

Thiongo gave no evidence of his alleged depression or trauma and gave no

documentary evidence of the day his documented hypertension or diabetes

changed or what treatment he was seeking that led him to come forward in 2011.

The medical evidence he provided showed that he was in good health and that his

medical conditions were well controlled as late as April 2010. The record does not

compel the conclusion that the BIA erred in holding that Thiongo failed to show

that his medical conditions were extraordinary or changed circumstances that

justified an exception to the one-year limitation.

      Thiongo argues that some incidents befalling his family constitute changed

circumstances warranting an extension of time in which he can seek relief. See 8

C.F.R. § 1208.4(a)(4), (5). On Thiongo’s account, the most recent of these events


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was his brother’s beating, which occurred on June 1, 2010. Yet Thiongo filed his

application for asylum on November 17, 2011, 17 months after the beating, and

has given no explanation for why taking 17 months from that incident to file the

application was within a “reasonable period given the circumstances.” See Al

Ramahi v. Holder, 725 F.3d 1133, 1135 (9th Cir. 2013) (noting that a “reasonable

period” is usually within six months of the changed circumstance). Substantial

evidence in the record supports the IJ’s determination, and the BIA’s affirmance,

that Thiongo’s asylum application was untimely. We deny Thiongo’s petition as to

his asylum application.

      Thiongo finally argues that he was denied due process of law, but Thiongo

did not raise this claim before BIA. Procedural due process claims must first be

exhausted before the Board. Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.

2004). This claim is not administratively exhausted, and we do not have

jurisdiction to review it. We dismiss this claim. The parties shall bear their own

costs on appeal.



GRANTED IN PART, DENIED IN PART, DISMISSED IN PART, AND
REMANDED.




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