     17-597
     Umirov v. Whitaker
                                                                                    BIA
                                                                          Christensen, IJ
                                                                          A088 427 970
                           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
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1        At a stated term of the United States Court of Appeals
 2   for the Second Circuit, held at the Thurgood Marshall
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 14th day of January, two thousand nineteen.
 5
 6   PRESENT:
 7            PETER W. HALL,
 8            DEBRA ANN LIVINGSTON,
 9            GERARD E. LYNCH,
10                 Circuit Judges.
11   _____________________________________
12
13   RUSLAN UMIROV, AKA RUSLAN
14   UMIROVA,
15            Petitioner,
16
17                    v.                                         17-597
18                                                               NAC
19   MATTHEW G. WHITAKER,
20   ACTING UNITED STATES ATTORNEY
21   GENERAL,
22            Respondent.
23   _____________________________________
24
25   FOR PETITIONER:                  Nicole Abruzzo Hemrick, Law
26                                    Offices of Spar & Bernstein, P.C.,
27                                    New York, NY.
28
29   FOR RESPONDENT:                  Chad A. Readler, Acting Assistant
30                                    Attorney General; Terri J.
31                                    Scadron, Senior Litigation
32                                    Counsel; Stefanie Notarino Hennes,
 1                                  Trial Attorney, Office of
 2                                  Immigration Litigation, United
 3                                  States Department of Justice,
 4                                  Washington, DC.
 5
 6         UPON DUE CONSIDERATION of this petition for review of a

 7   Board of Immigration Appeals (“BIA”) decision, it is hereby

 8   ORDERED, ADJUDGED, AND DECREED that the petition for review

 9   is DENIED.

10         Petitioner Ruslan Umirov, a native of the former Soviet

11   Union who was born in what is now Kazakhstan, 1 seeks review

12   of a February 1, 2017, decision of the BIA affirming an April

13   19, 2016, decision of an Immigration Judge (“IJ”) denying his

14   application for asylum, withholding of removal, and relief

15   under the Convention Against Torture (“CAT”).         In re Ruslan

16   Umirov, No. A 088 427 970 (B.I.A. Feb. 1, 2017), aff’g No. A

17   088 427 970 (Immig. Ct. N.Y. City Apr. 19, 2016).         We assume

18   the   parties’   familiarity    with   the   underlying   facts   and

19   procedural history in this case.

20         We note at the outset that Umirov only challenges the

21   agency’s denial of asylum, and has thus waived his claims for



     1 Umirov argues that he is not a citizen of Kazakhstan. The agency
     found the record of Umirov’s citizenship inconclusive and ordered
     him removed to Kazakhstan because it was where he lived before
     coming to the United States and the location of his birth.       8
     U.S.C. § 1231(b)(2)(E)(iii), (vi).
                                       2
1    withholding of removal and CAT relief.                    Yueqing Zhang v.

2    Gonzales, 426 F.3d 540, 541 n.1 (2d Cir. 2005) (providing

3    that issues not raised in an opening brief are waived). The

4    agency denied asylum on two alternative bases: Umirov failed

5    to timely file his application and, even assuming timely

6    filing,    he    failed       to   establish    a   well-founded        fear    of

7    persecution in Kazakhstan.             Because the timeliness ruling is

8    dispositive, we decline to reach the agency’s alternative

 9   burden determination.              INS v. Bagamasbad, 429 U.S. 24, 25

10   (1976)    (“As    a    general     rule    courts   and   agencies      are    not

11   required to make findings on issues the decision of which is

12   unnecessary to the results they reach.”).

13          With respect to the timeliness ruling, we have reviewed

14   both     the    IJ’s    and    BIA’s      decisions     “for    the    sake    of

15   completeness.”         Wangchuck v. DHS, 448 F.3d 524, 528 (2d Cir.

16   2006).     To be eligible for asylum, an alien must provide

17   clear and convincing evidence that he applied for asylum

18   within one year of entering the United States or show “either

19   the    existence       of   changed    circumstances      which       materially

20   affect     the        applicant’s         eligibility     for     asylum        or

21   extraordinary circumstances relating to the delay in filing

22   an application within the [one-year] period.”                          8 U.S.C.

                                               3
 1   § 1158(a)(2)(B), (D).         Our review of the agency’s timeliness

 2   ruling is limited to constitutional claims and questions of

 3   law.     8   U.S.C.    §§ 1158(a)(3);           1252(a)(2)(D).        Although

 4   Umirov’s challenges to the timeliness ruling lack merit, as

 5   discussed     below,    they    are       not     “so       insubstantial   and

 6   frivolous” that we lack jurisdiction to review them.                     Barco-

 7   Sandoval v. Gonzales, 516 F.3d 35, 40 (2d Cir. 2008).

 8          The Immigration and Nationality Act (“INA”) and the

 9   agency’s regulations excuse the failure to meet the one-year

10   application    deadline       under   certain       circumstances.          For

11   example, “unaccompanied minors” are excused from filing for

12   asylum within the one-year period. 8 U.S.C. § 1158(a)(2)(E);

13   8 C.F.R. § 1208.4(a)(5)(ii).               Although this exception is

14   limited to unaccompanied minors, the agency assumed that

15   Umirov was excused from applying for asylum until he turned

16   18 years old.     Failure to file within the one-year filing

17   deadline is also excused where the applicant maintains lawful

18   immigration    status    or    parole     “until        a   reasonable   period

19   before the filing of the asylum application.”                        8 C.F.R.

20   § 1208.4(a)(5)(iv).       The agency also accepted that Umirov’s

21   status as a derivative beneficiary on his mother’s relief

22   application might trigger this exception.

                                           4
 1         However, the IJ determined that Umirov’s failure to apply

 2   for asylum during the time period between December 2006 (when

 3   he turned 18) and September 2008 (when he was apprehended and

 4   initially detained, and his mother applied for a visa) was

 5   not reasonable.     See 8 C.F.R. § 1208.4(a)(5) (providing that

 6   extraordinary circumstances “may excuse the failure to file

 7   within the 1–year period as long as the alien filed the

 8   [asylum] application within a reasonable period given those

 9   circumstances”); In re T-M-H & S-W-C-, 25 I. & N. Dec. 193

10   (B.I.A. 2010) (holding that there is no bright-line rule, but

11   delays     of   greater    than   six   months   will     generally   be

12   unreasonable).      Accordingly, the issue presented here is

13   whether any other extraordinary circumstance excused Umirov’s

14   failure to file during this period.

15         We retain jurisdiction to review Umirov’s arguments that

16   the   IJ   misapplied     the   legal   standards   or   overlooked   or

17   misconstrued evidence in reaching the conclusion that there

18   was no other extraordinary circumstance.                 See Mendez v.

19   Holder, 566 F.3d 316, 323 (2d Cir. 2009).                  However, as

20   discussed below, Umirov’s arguments lack merit.

21         Umirov argues that the agency failed to consider whether

22   his psychiatric conditions (including post-traumatic stress

                                         5
1    disorder and depression) were an extraordinary circumstance

2    that excused his delay in seeking asylum.       See 8 C.F.R.

 3   § 1208.4(a)(5)(i) (listing “[s]erious illness or mental or

 4   physical disability” as one extraordinary circumstance), (ii)

 5   (defining “legal disability” to include “suffer[ing] from a

 6   mental impairment”).   However, while Umirov submitted mental

 7   health evidence and testified briefly about his conditions,

 8   he did not testify or argue before the IJ that his conditions

 9   were an extraordinary circumstance that prevented him from

10   applying for asylum.   Moreover, because the IJ acknowledged

11   Umirov’s mental health conditions and concluded that they did

12   not affect Umirov’s competency, remand is not warranted.

13   Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 336 n.17

14   (2d Cir. 2006) (“We presume that an IJ has taken into account

15   all of the evidence before him, unless the record compellingly

16   suggests otherwise.”); Wei Guang Wang v. Bd. of Immigration

17   Appeals, 437 F.3d 270, 275 (2d Cir. 2006) (the agency need

18   not “expressly parse or refute on the record each individual

19   argument or piece of evidence offered by the petitioner.”).

20       Umirov also argues that the IJ erred in determining that

21   his status as a minor ended when he turned 18 years old rather

22   than when he turned 21.    However, as the BIA observed, the

                                   6
1    relevant     INA   provision      that       excuses    “unaccompanied      alien

2    children” from meeting the one-year filing deadline, 8 U.S.C.

 3   § 1158(a)(2)(E), explicitly incorporates another provision

 4   that defines “unaccompanied alien child” as: a child who has

 5   no lawful immigration status, “has not attained 18 years of

 6   age,” and has no parent or legal guardian in the United States

 7   available to care for him or her, see 6 U.S.C. § 279(g).

 8   Accordingly, the IJ did not err in finding that Umirov’s minor

 9   status ended when he turned 18.

10         Absent any legal error in the agency’s analysis, the

11   ultimate question of whether Umirov’s delay in applying for

12   asylum was reasonable is a factual determination that we do

13   not   have    jurisdiction        to     review        further.       8    U.S.C.

14   § 1158(a)(3); Xiao Ji Chen, 471 F.3d at 330-32.

15         For the foregoing reasons, the petition for review is

16   DENIED.      Petitioner’s request for oral argument in this

17   petition     is    DENIED    in   accordance       with     Federal       Rule   of

18   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

19   34.1(b).

20                               FOR THE COURT:
21                               Catherine O’Hagan Wolfe, Clerk of Court
22



                                              7
