    07-5704-ag
    Barry v. Holder
                                                                                   BIA
                                                                            Schoppert, IJ
                                                                           A095 866 905
                            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 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 Daniel Patrick Moynihan
    United States Courthouse, 500 Pearl Street, in the City of
    New York, on the 21 st day of January, two thousand ten.

    PRESENT:
                      RALPH K. WINTER,
                      PIERRE N. LEVAL,
                      REENA RAGGI,
                            Circuit Judges.

    _______________________________________

    MARIAMA BOBO BARRY,
             Petitioner,

                       v.                                  07-5704-ag
                                                           NAC
    ERIC H. HOLDER, JR., 1 UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _______________________________________

    FOR PETITIONER:                  O. Andrew F. Wilson, Emery Celli
                                     Brinckerhoff & Abady LLP, New York,
                                     NY.




                 1
              Pursuant to Federal Rule of Appellate Procedure
        43(c)(2), Attorney General Eric. H. Holder, Jr., is
        automatically substituted for former Attorney General
        Michael B. Mukasey as respondent in this case.
FOR RESPONDENT:        Michael F. Hertz, Acting Assistant
                       Attorney General; Terri J. Scadron,
                       Assistant Director; Greg D. Mack,
                       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 DENIED, in part, and GRANTED, in part.

    Mariama Bobo Barry, a native and citizen of Guinea,

seeks review of a November 26, 2007 order of the BIA

affirming the September 1, 2005 decision of Immigration

Judge (“IJ”) Douglas B. Schoppert, which denied her

application for asylum, withholding of removal, and relief

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

Bobo Barry, No. A095 866 905 (B.I.A. Nov. 26, 2007), aff’g

No. A095 866 905 (Immig. Ct. N.Y. City Sep. 1, 2005).        We

assume the parties’ familiarity with the underlying facts

and procedural history in this case.

    We review the agency’s factual findings under the

substantial evidence standard.   8 U.S.C. § 1252(b)(4)(B);

see also Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d

281, 289 (2d Cir. 2007).   We review de novo questions of

law and the application of law to undisputed fact.     See

Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).

                             2
I.   Asylum

      Title 8, Section 1158(a)(3) of the United States Code

provides that no court shall have jurisdiction to review the

agency’s finding that an asylum application was untimely

under 8 U.S.C. § 1158(a)(2)(B), or that neither changed nor

extraordinary circumstances excused the untimeliness under 8

U.S.C. § 1158(a)(2)(D).    Notwithstanding that provision,

however, this Court retains jurisdiction to review

constitutional claims and “questions of law.”      8 U.S.C. §

1252(a)(2)(D).    Barry asserts that this Court has

jurisdiction to review her claim that the “BIA applied the

wrong legal standard to the one-year filing deadline

analysis.”    Pet’r’s Br. at 30.   We agree.   When “a

petitioner argues that the agency applied an erroneous legal

standard in making a discretionary determination, the

petitioner raises a question of law.”     Ilyas Khan v.

Gonzales, 495 F.3d 31, 35 (2d Cir. 2007); see also id.

(explaining that this Court’s “analysis of whether a

petition presents reviewable claims focuses on the nature of

the claims raised and not on the merits of those claims”);

cf. Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 330

(2d Cir. 2006).    Nevertheless, Barry’s standard challenge is

without merit.




                               3
    An applicant for asylum must file her application

within one year of arriving in the United States unless: (i)

the applicant’s filing delay is reasonable; and (ii) there

are extraordinary circumstances “relating to the delay in

the filing an application within” the one-year period that

were not intentionally created by the alien.    8 U.S.C.

§ 1158(a)(2)(D); see also 8 C.F.R. § 1208.4(a); Matter of Y-

C-, 23 I. & N. Dec. 286, 288 (BIA 2002).    Barry argues that

the BIA applied the wrong legal standard by requiring, in

effect, that she demonstrate that her Post Traumatic Stress

Disorder (“PTSD”) prevented her from filing a timely

application, rather than requiring a showing that her PTSD

was related to her failure to timely file her application.

We are not persuaded.    While the BIA decision does not

describe the applicable legal standard as precisely as one

might wish, the Board expressly stated that the evidence

failed to show that Barry’s condition “had a direct relation

to her failure to file her asylum application in a timely

manner” and declined to speculate that such a relation

existed.    In re Mariama Bobo Barry, No. A095 866 905, slip

op. at 1.    Accordingly, we conclude that the board applied

the correct legal standard.




                               4
II.   Withholding of Removal

      Nonetheless, upon the Government’s request, we remand

the case to the BIA in order for it to consider Barry’s

withholding of removal claim.       As the Government observes,

the analysis the agency applied in denying that claim has

since been squarely rejected by both this Court and the BIA

itself.       Salimatou Bah, 529 F.3d at 109-11; Matter of S-A-K

& H-A-H-, 24 I. & N. Dec. 464 (BIA 2008); Matter of A-T-, 25

I. & N. Dec. 4 (BIA 2009). 2

      For the foregoing reasons, the petition for review is

DENIED, in part, and GRANTED, in part.       The case is REMANDED

for further proceedings consistent with this order.       As we

have completed our review, any stay of removal that the

Court previously granted in this petition is VACATED, and

any pending motion for a stay of removal in this petition is

DISMISSED as moot. Any pending request for oral argument in

this petition is DENIED in accordance with Federal Rule of

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

34(b).

                                FOR THE COURT:
                                Catherine O’Hagan Wolfe, Clerk




          2
        Barry does not challenge the agency’s denial of her
  application for CAT relief.
                              5
