                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-30-2008

Mlambo v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3383




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                                                        NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT


                                        No. 07-3383


                            PRIOR BEKITHEMBA MLAMBO,
                                               Petitioner

                                             v.

                  ATTORNEY GENERAL OF THE UNITED STATES,
                                           Respondent


                          On Petition for Review of an Order of the
                              Board of Immigration Appeals
                                (Agency No. A97-965-727)
                         Immigration Judge: Honorable R.K. Malloy


                       Submitted Pursuant to Third Circuit LAR 34.1(a)
                                      October 30, 2008

            Before: SLOVITER, STAPLETON and COWEN, Circuit Judges

                              (Opinion filed: October 30, 2008)


                                         OPINION


PER CURIAM

       Prior Bekithemba Mlambo petitions for review of a final order of removal of the

Board of Immigration Appeals (“BIA”). For the reasons that follow, we will deny the

petition for review.
       Mlambo is a native and citizen of Zimbabwe who came to the United States in

January 2000 as a non-immigrant to attend a university. In December 2003, the

Immigration and Naturalization Service issued a notice to appear charging that Mlambo

was subject to removal because he failed to maintain or comply with the conditions of

non-immigrant status under which he was admitted. Through counsel, Mlambo conceded

that he did not attend the university from May 31, 2000, until the present, and that he was

removable as charged. Mlambo applied for asylum, withholding of removal, and relief

under the Convention Against Torture (“CAT”).

       For the reasons set forth in the IJ’s decision, the IJ granted Mlambo withholding of

removal, finding that he was persecuted in Zimbabwe on account of a protected ground,

and that he would more likely than not suffer future persecution. Mlambo, however, was

unhappy with this form of relief because he was concerned that he would be unable to

have his family, who were living in the United Kingdom, join him here. Mlambo sought

asylum, but the IJ concluded that his asylum application, filed in October 2003, was

untimely.

       The IJ rejected Mlambo’s argument that extraordinary circumstances excused him

from filing his application until October 2003. Mlambo testified that he became ill in

July 2000, that he was diagnosed with colon cancer in January 2001, and that he received

chemotherapy from April 2001 until August 2001. Mlambo’s cancer was in remission

from August 2001 until June 2004, when it returned. The IJ stated that she could

understand Mlambo’s delay in filing his asylum application based upon his diagnosis with

                                             2
a life-threatening disease, but she concluded that waiting until October 2003 to file was

unreasonable. The IJ stated that she would have considered the application timely filed if

Mlambo had applied by the end of 2001, four or five months after the cancer went into

remission.1

       The BIA agreed that Mlambo did not file his application within a reasonable

period of time and dismissed his appeal. The BIA remanded the record to the IJ to

complete the necessary background and security checks related to the grant of

withholding of removal. Mlambo then moved for reconsideration of the BIA’s order,

arguing that the BIA did not consider certain arguments in his brief.2 The BIA granted

the motion and vacated its prior decision. The BIA, however, again concluded that

Mlambo’s asylum application was untimely and adopted and affirmed the IJ’s decision.

The BIA remanded the record to the IJ to complete the background checks related to the

grant of withholding of removal. The IJ then entered a final order denying asylum and

relief under the CAT and granting withholding of removal. This petition for review

followed.

       We must first address our jurisdiction over the petition for review. The



   1
   The IJ also stated in her decision that she would have found the application timely if
Mlambo had filed it within six months of August 2001, when his cancer went into
remission.
   2
    Mlambo also filed a petition for review. In March 2007, we dismissed the petition for
lack of jurisdiction because a final order had yet to be issued based on the BIA’s remand
of the record to the IJ.

                                             3
Government correctly argues that we lack jurisdiction to review a claim that an alien met

his or her burden of showing that extraordinary circumstances excuse the untimely filing

of an asylum application. Sukwanputra v. Gonzales, 434 F.3d 627, 635 (3d Cir. 2006).

We may, however, entertain constitutional claims or questions of law. Jarbough v.

Attorney General, 483 F.3d 184, 189 (3d Cir. 2007). As discussed below, Mlambo

presents colorable questions of law for our review. We thus deny the Government’s

motion to dismiss the petition for review.

       Mlambo contends that at the outset of his hearing the IJ expressed the view,

contrary to the immigration regulations, that she would not consider his depression as an

excuse for his untimely asylum application. Mlambo notes that, under 8 C.F.R.

§ 1208.4(a)(5), extraordinary circumstances include a “[s]erious illness or mental or

physical disability. . .during the 1-year period after arrival[.]” Mlambo further contends

that, when his lawyer asked him about his depression, the IJ made clear that she found it

irrelevant.

       We agree with the BIA that the record does not reflect that the IJ applied a rule

that depression can not constitute an extraordinary circumstance excusing an untimely

asylum application. In her decision, the IJ recognized that Mlambo’s illness “would have

a powerful impact on the psychological condition of the individual.” Joint App. at 23.

The IJ stated:

       This is a life-threatening disease, and certainly an individual who is
       diagnosed with such a life-threatening disease would be depressed, and so
       the Court certainly can understand a delay in the filing of an application.

                                             4
       However, the issue in this case is how much time should the person be
       allowed to hold off on the filing of an asylum application if he is suffering
       from a serious illness? The respondent is still suffering from a serious
       illness. Should the Court wait until the illness is either cured or goes into
       permanent remission, if there is such a thing?

Joint App. at 23. The IJ then recounted the facts regarding Mlambo’s illness, including

his statement in his affidavit that he was severely depressed because he was here without

his family, and that people were telling him that he would probably not survive; his

statement at the asylum office that he did not fully recover until the latter half of 2002;

and his testimony that his cancer was in remission from August 2001 until June 2004.3

       Mlambo argues that the IJ’s decision must be viewed in the context of her

statements at his hearing. The hearing transcript suggests that the IJ did not believe that

depression resulting from the separation from one’s family would constitute extraordinary

circumstances because that is a factor present in all cases. Joint App. at 82. When

Mlambo’s counsel argued that Mlambo’s depression resulted from his illness, the IJ

replied that he was asking for too much. Joint App. at 83. The IJ stated that she was

willing to give Mlambo a year beyond the deadline to file his application, but not two

years. The IJ noted that Mlambo had filed his application while he was still undergoing

treatment, and that he could have applied earlier. The transcript reflects that the IJ was

considering what was reasonable under the circumstances, and her decision makes clear



   3
    The IJ also noted that Mlambo had stated at the asylum office that he delayed filing
his application because he did not know the asylum process. The IJ stated that such a
lack of knowledge did not warrant a waiver of the filing deadline.

                                              5
that those circumstances included Mlambo’s emotional state.4

       Mlambo further argues that, when counsel tried to elicit testimony about his

depression on two occasions, the IJ’s responses demonstrated that she found such

testimony irrelevant. We disagree. Mlambo notes that, when counsel asked him whether

his diagnosis affected his emotional health, the IJ asked counsel to move on. Joint App.

at 138. The IJ, however, stated that the answer was obvious, implicitly recognizing that

such a diagnosis would have a negative effect. Mlambo also notes that, when counsel

asked Mlambo how he felt during the months after he stopped treatment until the time he

filed his asylum application, the IJ interrupted him. Joint App. at 139-40. The IJ did so,

however, in order to review the circumstances surrounding when he stopped treatment.

Mlambo then testified about his state of mind and what he was doing from the time he

stopped treatment until his cancer returned. Counsel then asked Mlambo why he did not

file his asylum application until October 2003, and Mlambo further testified about his

depressed state. Joint App. at 143.

       We conclude that the IJ’s decision was not contrary to the regulations. The IJ

recognized Mlambo’s depressed state resulting from his cancer, but concluded that the

time that he waited to file was unreasonable, a conclusion that we lack jurisdiction to

review.



   4
    Under the regulations, extraordinary circumstances may excuse the failure to file
within the 1-year period as long as the alien filed the application within a reasonable
period given those circumstances. 8 C.F.R. § 1208.4(a)(5) (emphasis added).

                                             6
       Based on our decision that the IJ’s decision was in conformity with the law, we

find no error in the BIA’s decision not to refer this matter to a three-member panel. See

Purveegiin v. Gonzales, 448 F.3d 684, 688 (3d Cir. 2006) (discussing referrals to a three-

member panel under 8 C.F.R. § 1003.1(e)(6)).5

       Accordingly, we will deny the petition for review.




   5
   The Government’s motion to summarily affirm the BIA’s decision in this regard,
which was referred to us for disposition, is denied as unnecessary.

                                             7
