    13-2769-ag
    Ordonez Azmen v. Lynch
                                                                                        BIA
                                                                           Gordon-Uruakpa, IJ
                                                                                A096 482 048


                             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.

         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 3rd day
    of September, two thousand fifteen.

    PRESENT:
              GUIDO CALABRESI,
              CHESTER J. STRAUB,
              ROSEMARY S. POOLER,
                   Circuit Judges.
    _____________________________________

    MARIO ORDONEZ AZMEN, AKA David Perez,
    AKA Mario Enrique Ordonez Azmen,
                    Petitioner,

                     v.                                              13-2769-ag

    LORETTA E. LYNCH, UNITED STATES
    ATTORNEY GENERAL,
                   Respondent.
    _____________________________________

    FOR PETITIONER:                   Charles Roth, Lisa Koop, National
                                      Immigrant Justice Center, Chicago, IL;
                                      David M. Sperling, Law Offices of David
                                      M. Sperling, Central Islip, NY; Gaelen
                                      Schumann, Hayley Steptoe, Julia Decker,
                          Student Attorneys; Benjamin Richard
                          Casper, Katherine Evans, University of
                          Minnesota Law School, Center for New
                          Americans, Federal Immigration Litigation
                          Clinic, Minneapolis, MN.

                          (Fatma E. Marouf, Associate Professor of
                          Law, University of Nevada, submitted a
                          brief for amicus curiae William S. Boyd
                          School of Law Immigration Clinic, in
                          support of Petitioner).

FOR RESPONDENT:           Margaret J. Perry Senior Litigation
                          Counsel, Stuart F. Delery, Assistant
                          General; Papu Sandhu, Senior Attorney
                          Litigation Counsel; 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 GRANTED and

the case is REMANDED to the agency.

     Mario Ordonez Azmen, a native and citizen of Guatemala, sought

review of a June 27, 2013 decision of the BIA affirming the December

9, 2010 decision of an Immigration Judge (“IJ”) denying his

application for asylum and statutory withholding of removal.   In re

Mario Ordonez Azmen, No. A096 482 048 (B.I.A. June 27, 2013), aff’g

No. A096 482 048 (Immig. Ct. N.Y. City Dec. 9, 2010).   In a summary

order issued on December 11, 2014, the Court granted the motion of

the University of Nevada School of Law Immigration Clinic to submit


                                 2
an amicus curiae brief; denied Ordonez Azmen’s petition for review

of the agency’s denial of asylum; and granted his petition with regard

to statutory withholding of removal. Ordonez Azmen v. Holder, 593

F. App’x 65 (2d Cir. 2014)(summary order).           Ordonez Azmen petitions

for rehearing of his asylum claim.          The petition for rehearing is

GRANTED to consider the issues Ordonez Azmen raises. We assume the

parties’ familiarity with the underlying facts and procedural

history in this case.

       We have considered both the IJ’s and the BIA’s opinions “for

the sake of completeness.”        Zaman v. Mukasey, 514 F.3d 233, 237 (2d

Cir. 2008) (citation omitted).        We lack jurisdiction to review the

agency’s   determination     on    “changed    circumstances”     unless   the

petitioner presents a question of law or a constitutional claim.              8

U.S.C. §§ 1158(a)(3), 1252(a)(2)(D).

       Ordonez Azmen argues that the BIA erred as a matter of law

because it mischaracterized and ignored evidence showing changed

circumstances.     He is correct: the BIA erred when it wrote that

Ordonez Azmen did not raise “changed circumstances” with the IJ, and

that he testified to only one murder that took place in 2004.               To

the contrary, Ordonez Azmen made the argument and testified in May

2010   about   a   second   murder   that     took   place   in   April   2010.

Accordingly, the BIA mischaracterized the evidence, and we retain

                                      3
jurisdiction to consider Ordonez Azmen’s changed circumstances

argument.   See Gui Yin Liu v. INS, 508 F.3d 716, 722 (2d Cir. 2007).

     An individual must apply for asylum within one year after

arriving in the United States.       8 U.S.C. § 1158(a)(2)(B).       Ordonez

Azmen arrived in the United States in 2003.          He filed a defensive

application for asylum in 2008, after he was placed in removal

proceedings.     His application was untimely.

     There is an exception to the filing deadline if the applicant

demonstrates     “the    existence   of    changed   circumstances     which

materially affect the applicant’s eligibility for asylum.”         8 U.S.C.

§ 1158(a)(2)(D).        To be eligible for asylum, an applicant must

demonstrate a well-founded fear of future persecution.            8 U.S.C.

§ 1101(a)(42).      Thus,    a   changed   circumstance   that   materially

affects an applicant’s eligibility for asylum is one that elicits

a fear of persecution or strengthens a preexisting fear.             Weinong

Lin v. Holder, 763 F.3d 244, 248-49 (2d Cir. 2014).

     Ordonez Azmen argues that the 2010 murder of a former gang member

constitutes “changed circumstances” excusing the tardiness of his

application. The statute does not specify a sequence as between

changed circumstances and an asylum application. While both this

Court and the BIA have assumed that the changed circumstances must

predate the asylum application, such assumptions are mere dicta.

                                      4
See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 320 n.1 (2d

Cir. 2006) (“[P]etitioner referred to the then-impending birth of

her   second   U.S.   citizen   child   not    as   evidence   of   changed

circumstances excusing an untimely asylum application — nor could

she have, inasmuch as the pregnancy occurred after petitioner already

had filed her asylum application . . . but rather, as further evidence

establishing   her    alleged   well-founded    fear    of   persecution.”

(internal quotation marks omitted)(emphasis in the original); Matter

of T-M-H- & S-W-C-, 25 I&N Dec. 193, 193 (B.I.A. 2010) (no automatic

one-year extension in which to file an asylum application following

“changed circumstances” under 8 U.S.C. § 1158(a)(2)(D), an alien

must instead file within a reasonable period).

      The arguments at stake are the following.        On the one hand, it

seems only logical that if asylum is to be granted because of changed

circumstances, the petition for asylum should follow the changes

justifying such a petition.     On the other hand, there are practical

considerations to the contrary.     Persons seeking asylum are often

ill-informed and poorly represented. Hon. Robert A. Katzmann, The

Marden Lecture: The Legal Profession and the Unmet Needs of the

Immigrant Poor, 21 Geo. JK. Legal Ethics 3, 7-10 (2008). A petitioner

with a pending asylum application that was untimely at filing may

rely on subsequent changed circumstances without realizing that a

                                   5
full filing would be necessary. Since an untimely asylum application

must be filed “within a reasonable period [of time] given those

‘changed circumstances,’” 8 C.F.R. § 1208.4(a)(4)(ii), the resulting

delay may well cause individuals to forfeit their claims for asylum.

Thus, to avoid creating a trap for those who are ill-informed or

ill-advised, a holding or regulation that treats such an ex post

proffer of changed circumstances as having the same effect as a new

application may both avoid disadvantaging such petitions and comport

with judicial and administrative economy by eliminating unnecessary

filings.    The agency is well positioned to consider the relative

merits     of   the   above-mentioned   logic   and   countervailing

practicalities.

     Accordingly, we remand to the BIA to consider whether, for the

purposes of the changed circumstances exception to the one-year

period for asylum applications, such “changed circumstances” must

occur before the application is filed, requiring a successive asylum

application to be filed subsequent to the “changed circumstances”

for a petitioner to potentially receive relief, or such “changed

circumstances” may occur after the application is filed, permitting

them to be considered in determining a pending asylum application’s

timeliness. See Poole v. Mukasey, 527 F.3d 257, 259 (2d Cir. 2008)

(noting that “[n]ormally the Government urges us to insist that the

                                  6
BIA have the initial opportunity to construe the statutes it

administers”).   Under these circumstances, a precedential opinion

or regulation would be especially useful.

     For the foregoing reasons, the petition for rehearing is

GRANTED, and we withdraw that part of our summary order of December

11, 2014, finding that the BIA’s error in stating Ordonez Azmen failed

to raise “changed circumstances” with the IJ harmless because the

“changed circumstances” occurred after the application for asylum

was filed.

     The petition for review is also GRANTED insofar as it challenges

the denial of statutory withholding of removal, and the case is

REMANDED to the BIA for further proceedings consistent with both this

order and the Court’s December 11, 2014 summary order.

                                FOR THE COURT:
                                Catherine O’Hagan Wolfe, Clerk




                                  7
