    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
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
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IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
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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


                                3
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


                                4
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.”
                              5
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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