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14‐2146‐ag Abankwah v. Lynch 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 COURTʹS 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 ʺSUMMARY ORDERʺ). 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 10th day of December, two thousand fifteen. PRESENT: ROBERT D. SACK, DENNY CHIN, SUSAN L. CARNEY, Circuit Judges. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x ADELAIDE ABANKWAH, AKA Kuukuah Norman, AKA Regina Norman Danson, Petitioner, v. 14‐2146‐ag LORETTA E. LYNCH, United States Attorney General, Respondent. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x FOR PETITIONER: RICHARD MANCINO, Alison Rose Levine, Willkie Farr & Gallagher, New York, New York. FOR RESPONDENT: STEFANIE A. SVOREN‐JAY, Trial Attorney, Office of Immigration Litigation, Benjamin C. Mizer, Acting Assistant Attorney General, Civil Division, John S. Hogan, Assistant Director, Office of Immigration Litigation, United States Department of Justice, Washington, D.C. FOR AMICI CURIAE: Nancy Morawetz, Washington Square Legal Services, Immigrant Rights Clinic, for Amici Curiae Human Rights First, Immigrant Defense Project, National Immigration Project of the National Lawyers Guild, New York, New York. UPON DUE CONSIDERATION of this petition for review of a Board of Immigration Appeals (ʺBIAʺ) decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the petition for review is DISMISSED in part and DENIED in part. Petitioner Adelaide Abankwah,1 a native and citizen of Ghana, seeks review of a May 20, 2014 decision of the BIA affirming a December 14, 2012 decision of an Immigration Judge (ʺIJʺ) denying Abankwahʹs application for asylum, withholding of removal, and relief under the Convention Against Torture (ʺCATʺ). In re Adelaide Abankwah, No. A074 881 776 (B.I.A. May 20, 2014), affʹg No. A074 881 776 (Immigr. Ct. N.Y.C. Dec. 14, 2012). We assume the partiesʹ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. 1 Petitioner entered the country and applied for asylum under the name ʺAdelaide Abankwah.ʺ Her real name apparently is Regina Norman Danson. We continue to refer to her as Abankwah, as she has been referred to in all of these related proceedings. 2 We review the IJʹs decision as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). Because Abankwah does not challenge the agencyʹs denial of CAT relief, we address only her eligibility for asylum and withholding of removal. A. Timeliness of the Asylum Application An asylum applicant must demonstrate ʺby clear and convincing evidence that the application has been filed within 1 year after the date of the alienʹs arrival in the United States.ʺ 8 U.S.C. § 1158(a)(2)(B). That deadline may be extended if the applicant demonstrates ʺeither the existence of changed circumstances which materially affect the applicantʹs eligibility for asylum or extraordinary circumstances relating to the delay in filing an application.ʺ Id. § 1158(a)(2)(D). We lack jurisdiction to review the agencyʹs finding that an applicant did not timely file her application, or that she failed to demonstrate changed or extraordinary circumstances excusing the untimeliness. Id. § 1158(a)(3). We retain jurisdiction to review constitutional claims and ʺquestions of law.ʺ Id. § 1252(a)(2)(D). ʺ[W]hen the petition for review essentially disputes the correctness of an IJʹs fact‐ finding,ʺ it does not raise a question of law. Xiao Ji Chen v. DOJ, 471 F.3d 315, 329 (2d Cir. 2006). Abankwah does not dispute that her second asylum application was untimely; instead, she challenges the agencyʹs determination that she did not demonstrate extraordinary circumstances excusing her late filing. 3 Abankwahʹs challenge, however, is merely to the IJʹs factual determinations and exercise of discretion, which we lack jurisdiction to review. See Joaquin‐Porras v. Gonzales, 435 F.3d 172, 180 (2d Cir. 2006); Xiao Ji Chen, 471 F.3d at 329. Abankwahʹs only legal argument is that the agency inappropriately applied a ʺheightened legal standardʺ in determining that she did not demonstrate extraordinary circumstances based on her post‐traumatic stress disorder (ʺPTSDʺ) diagnosis. Pet. Br. at 27. The argument is without merit. The agency did not hold Abankwah to a ʺheightened legal standard.ʺ The IJ articulated and applied the standard for ʺextraordinary circumstances,ʺ under which the applicant must show that (1) ʺthe circumstances were not intentionally created by the [applicant]ʺ; (2) the ʺcircumstances were directly related to the [applicantʹs] failure to file the application within the 1‐year periodʺ; and (3) ʺthe delay was reasonable under the circumstances.ʺ 8 C.F.R. § 1208.4(a)(2)(i)(B), (a)(5). The IJ reasonably determined that while a serious illness like PTSD may constitute extraordinary circumstances, Abankwahʹs diagnosis standing alone did not establish that her seven‐year delay in filing was reasonable. Accordingly, we lack jurisdiction to review Abankwahʹs extraordinary circumstances claim. 4 B. Withholding of Removal An alien is ineligible for withholding of removal if ʺthe alien, having been convicted by a final judgment of a particularly serious crime is a danger to the community of the United States.ʺ 8 U.S.C. § 1231(b)(3)(B)(ii). Certain aggravated felonies are per se particularly serious crimes. Id. § 1231(b)(3)(B) (for purposes of withholding of removal, an aggravated felony ʺfor which the alien has been sentenced to an aggregate term of imprisonment of at least 5 yearsʺ is a particularly serious crime). Additionally, the agency may find that any crime, including a crime that is not an aggravated felony, is particularly serious. Nethagani v. Mukasey, 532 F.3d 150, 155‐57 (2d Cir. 2008). Abankwah has not been convicted of a per se particularly serious crime because her term of imprisonment did not exceed five years. 8 U.S.C. § 1231(b)(3)(B). The BIA has held that the determination of whether an individual poses a danger to the community is subsumed in the analysis of whether the crime is particularly serious; this Court has deferred to that holding under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). See Flores v. Holder, 779 F.3d 159, 167 (2d Cir. 2015) (ʺWe have accorded Chevron deference . . . to the BIAʹs interpretation that no separate danger to the community analysis is required when determining whether a crime is particularly serious.ʺ); Nethagani, 532 F.3d at 154 n.1 (ʺ[T]he BIA has held that [an] alien [convicted of a particularly serious crime] necessarily constitutes ʹa danger to the community of the United States.ʹ We have 5 accepted the BIAʹs interpretation of the statute.ʺ (citing Ahmetovic v. INS, 62 F.3d 48, 52‐ 53 (2d Cir. 1995))). We are bound by these decisions ʺunless and until the precedents established therein are reversed en banc or by the Supreme Court.ʺ United States v. Jass, 569 F.3d 47, 58 (2d Cir. 2009). Accordingly, Abankwahʹs contention that the agency erred in not independently analyzing dangerousness fails as a matter of law. Finally, we note that the agency conducted an individualized analysis, and reasonably concluded that Abankwahʹs perjury convictions were particularly serious. The IJ weighed the relevant factors and concluded that (1) perjury, though not violent, is very serious by nature and can be an aggravated felony; and (2) the circumstances and underlying facts of Abankwahʹs perjury convictions were particularly egregious, because she ʺconcoct[ed] an elaborate story about [female genital mutilation]ʺ and ʺperpetuated the false testimony at the BIA, the Second Circuit and in the public.ʺ Abankwah, No. A074 881 776, at 13 (Immig. Ct. N.Y.C. Dec. 14, 2012). The BIA agreed, stating that ʺ[t]he applicantʹs extensive fraud on this nationʹs courts strikes at the heart of the countryʹs immigration laws and undermines the integrity of the entire system.ʺ Abankwah, No. A074 881 776, at 3 (B.I.A. May 20, 2014). Both the IJ and the BIA engaged in a case‐specific analysis, considered the totality of the circumstances, and reached a reasonable conclusion that her perjury convictions were particularly serious. Accordingly, the agency did not err in denying withholding of removal. See Nethagani, 532 F.3d at 154‐55. 6 For the foregoing reasons, the petition for review is DISMISSED for lack of jurisdiction with respect to asylum, and DENIED in remaining part with respect to withholding of removal. FOR THE COURT: Catherine OʹHagan Wolfe, Clerk 7
Document Info
Docket Number: 14-2146-ag
Filed Date: 12/10/2015
Precedential Status: Non-Precedential
Modified Date: 4/18/2021