         17-1496
         Pantelica v. Barr
     17-1496
     Pantelica v. Barr
                                                                                      BIA
                                                                                   Hom, IJ
                                                                        A201 162 692/694
                                                                     A201 290 725/726/727
                                                                    A201 198/ 445/446/447

                             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 13th day of August, two thousand nineteen.
 5
 6   PRESENT:
 7            JOHN M. WALKER, JR.,
 8            PETER W. HALL,
 9            RAYMOND J. LOHIER, JR.,
10                 Circuit Judges.
11   _____________________________________
12
13   LENUTA PANTELICA, PATRIZIA
14   PANTELICA, NICU SORIN PANTELICA,
15   CRISTINA PANTELICA, MARIAN
16   PANTELICA, AKA MARIN PANTELICA,
17   CONSTANTIN PANTELICA, AKA
18   CONSTANIN PANTELICA, MIHAELA
19   ELENA DUMITRASCU, AKA MIHAELA
20   ELENA PANTELICA, ARIANNA
21   PANTELICA,
22            Petitioners,
23
24                      v.                                       17-1496
25                                                               NAC
26   WILLIAM P. BARR, UNITED STATES
27   ATTORNEY GENERAL,
28            Respondent.
29   _____________________________________
 1   FOR PETITIONERS:             David Garth Sullivan, New York,
 2                                NY.
 3
 4   FOR RESPONDENT:              Chad A. Readler, Acting Assistant
 5                                Attorney General; Anthony C.
 6                                Payne, Assistant Director; Yedidya
 7                                Cohen, Trial Attorney, Office of
 8                                Immigration Litigation, United
 9                                States Department of Justice,
10                                Washington, DC.
11
12       UPON DUE CONSIDERATION of this petition for review of a

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

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

15   is DENIED.

16       Lenuta Pantelica, Nicu Pantelica, Constantin Pantelica,

17   and their derivative beneficiaries1 (“petitioners”),      natives

18   and citizens of Romania, seek review of an April 12, 2017,

19   decision of the BIA affirming an April 19, 2016, decision of

20   an Immigration Judge (“IJ”) denying their applications for

21   asylum,   withholding   of   removal,   and   relief   under   the

22   Convention Against Torture (“CAT”).      In re Lenuta Pantelica

23   et al., Nos. A 201 162 692/ A201 290 725 / A201 198 445 (B.I.A.

24   Apr. 12, 2017), aff’g Nos. A 201 162 692 / A201 290 725 / A201

25   198 445 (Immig. Ct. N.Y. City Apr. 19, 2016).      We assume the

26   parties’ familiarity with the underlying facts and procedural


     1 The derivative beneficiaries associated with this petition are
     Patrizia Pantelica (A201 162 694), Cristina Pantelica (A201 290
     726), Marian Pantelica (A201 290 727), Mihaela Elena Dumitrascu
     (A201 198 446), and Arianna Pantelica (A201 198 447).
                                     2
1    history in this case.

2    Asylum: One-Year Filing Deadline

3        An alien is ineligible for asylum “unless the alien

4    demonstrates by clear and convincing evidence that the

5    application has been filed within 1 year after the date of

6    the alien’s arrival in the United States.”   8 U.S.C.

7    § 1158(a)(2)(B).   An application may be considered outside

8    the one-year deadline, however, “if the alien demonstrates

9    . . . the existence of changed circumstances which

10   materially affect the applicant’s eligibility for asylum or

11   extraordinary circumstances relating to the delay,” id.

12   § 1158(a)(2)(D), and the application is filed within a

13   reasonable time, 8 C.F.R. § 1208.4(a)(4)(ii), (a)(5).    Our

14   jurisdiction to review the agency’s findings regarding the

15   timeliness of an asylum application and the circumstances

16   excusing the untimeliness is limited to “constitutional

17   claims or questions of law.”   See 8 U.S.C. §§ 1158(a)(3),

18   1252(a)(2)(D).

19       Lenuta concedes that she “formally filed” her asylum

20   application in September 2012, but asserts that the agency

21   overlooked that she timely lodged her application on March 5,

22   2012.   Although her argument implicates questions of law,

23   i.e., what constitutes filing of an application and whether

                                    3
1    the   agency    ignored      evidence,     her     argument       lacks   merit.

2    Lenuta does not dispute that she first entered the United

3    States on March 30, 2011.           Her asylum application was dated

4    March 1, 2012, which, had it been filed then, would have been

5    timely.      See      8 U.S.C.   § 1158(a)(2)(B)           (setting   one-year

6    deadline).        Lenuta,    however,      did    not   submit      her   asylum

7    application to the IJ until August 2012, which was well beyond

8    the one-year filing period.           See 8 C.F.R. §§ 1003.13 (“Filing

9    means the actual receipt of a document by the appropriate

10   Immigration Court”), 1208.4(a)(2)(ii) (explaining that asylum

11   application “is considered to have been filed on the date it

12   is received by the Immigration Court”).                     Because there is

13   nothing in the record to establish that Lenuta filed her

14   asylum application in the immigration court earlier than

15   August    2012,      the   agency   did    not    commit     legal    error   in

16   determining that her application was untimely.

17   Unexhausted Claims

18         The remainder of the claims raised in the briefs are

19   unexhausted.         The petitioners assert that (1) the IJ erred

20   by failing to inquire about whether any exceptions to the

21   one-year deadline applied to Constantin’s untimely asylum

22   application; and (2) the IJ failed to develop the record

23   regarding      the     mistreatment       of     Gypsies     in    Romania    by

                                           4
1    consulting “readily available” country conditions reports.

2    Before    the   BIA,      the       petitioners      raised     two    distinct

3    arguments.      Namely,         that   the    IJ’s     adverse       credibility

4    determination      was    erroneous,        and     that     their    testimony,

5    “without more,” was sufficient to sustain their burden of

6    proof.       The    petitioners’            new     claims     are     therefore

7    unexhausted, and we decline to consider them.                    See 8 U.S.C.

8    § 1252(d)(1);      Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d

9    104, 122 (2d Cir. 2007) (providing that judicially imposed

10   issue exhaustion is mandatory); see also Severino v. Mukasey,

11   549 F.3d 79, 83 (2d Cir. 2008) (“[A]n alien must raise

12   procedural defects that the BIA has the power to correct”).

13   Even if we were to reach these claims, it is an applicant’s

14   burden to establish timely filing and to document his or her

15   asylum    claim.         See    8    U.S.C.       §§ 1158(a)(2)(B)      &   (D),

16   (b)(1)(B)(i); Chuilu Liu v. Holder, 575 F.3d 193, 198 (2d

17   Cir. 2009) (“[W]hile we have sometimes remanded a case if the

18   IJ failed to explain his reliance on a lack of corroborating

19   evidence, the alien bears the ultimate burden of introducing

20   such evidence without prompting from the IJ.”); see also In

21   re S-M-J-, 21 I. & N. Dec. 722, 724 (B.I.A. 1997).

22       For the foregoing reasons, the petition for review is

23   DENIED.   As we have completed our review, any stays of removal

                                             5
1    that   the   Court   previously    granted   in   this   petition   are

2    VACATED, and any pending motion for stays of removal in this

3    petition is DISMISSED as moot.         Any pending request for oral

4    argument in this petition is DENIED in accordance with Federal

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

6    Local Rule 34.1(b).

 7                                     FOR THE COURT:
 8                                     Catherine O’Hagan Wolfe,
 9                                     Clerk of Court
10




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