Kubir Gurung v. Loretta E. Lynch , 644 F. App'x 754 ( 2016 )

FILED
NOT FOR PUBLICATION
MAR 11 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KUBIR MAN GURUNG, No. 13-70726
Petitioner, Agency No. A089-703-569
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 12, 2016
San Francisco, California
Before: TASHIMA and W. FLETCHER, Circuit Judges and BASTIAN,** District
Judge.
Kubir Man Gurung entered the United States on April 27, 2007, with
authorization to remain in the United States until July 1, 2007. Gurung overstayed
his visa, and on January 6, 2009, filed an affirmative application for asylum and
withholding of removal. The IJ denied Gurung’s application, and the BIA affirmed.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Stanley Allen Bastian, District Judge for the U.S.
District Court for the Eastern District of Washington, sitting by designation.
We lack jurisdiction to review the denial of Gurung’s asylum application, but
remand the denial of withholding of removal for further proceedings.
To qualify as an applicant for asylum, an alien must either demonstrate by
clear and convincing evidence that he filed his application within one year of the
date of his arrival in the United States, or satisfy the Attorney General that
“changed circumstances” materially affect his eligibility for asylum or
“extraordinary circumstances” related to his delay in filing. 8 U.S.C. §
1158(a)(2)(B) and (D); see 8 C.F.R. § 1208.4(a)(2)-(4). Gurung concedes that he
entered the United States in April 2007 and did not apply for asylum until January
2009—roughly eight months after the one-year filing deadline. The district court
subsequently concluded that Gurung qualified for neither the extraordinary nor
changed circumstances exception.
The Immigration and Nationality Act provides that “[n]o court shall have
jurisdiction to review any determination” concerning the one-year filing deadline
for asylum. 8 U.S.C. § 1158(a)(3). Since 2005, a court may review timeliness
determinations involving constitutional claims or questions of law, 8 U.S.C. §
1252(a)(2)(D), including the Board’s determination that an alien’s failure did not
qualify for an exception for extraordinary or changed circumstances where the
underlying facts are not in dispute. See Husyev v. Mukasey, 528 F.3d 1172, 1178
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(9th Cir. 2008); Ramadan v. Gonzales, 479 F.3d 646, 650 (9th Cir. 2007). Because
the underlying facts in this case are in dispute, we lack jurisdiction to review the
one-year-deadline asylum decision.
The IJ also determined that Gurung lacked credibility, and on that basis
denied withholding of removal. The BIA affirmed the IJ’s credibility determination
based on a finding that Gurung’s testimony was contradictory, vague, and lacked
the requisite corroboration. The IJ’s conclusions regarding Gurung’s contradictory
and vague testimony failed, in our view, to meet the substantial evidence standard.
Generally, rejecting only some of the IJ’s reasons for an adverse credibility finding
would not undermine the finding itself. See Wang v. INS., 352 F.3d 1250, 1259
(9th Cir. 2003) (“[W]hether we have rejected some of the IJ's grounds for an
adverse credibility finding is irrelevant.”) In this case, however, the only remaining
ground is Gurung’s alleged failure to provide corroborative evidence.
Three cases decided after the IJ and BIA issued their opinions are applicable
here: Ren v. Holder, 648 F.3d 1079 (9th Cir. 2011); Ai Jun Zhi v. Holder, 751 F.3d
1088 (9th Cir. 2014); and Lai v. Holder, 773 F.3d 966 (9th Cir. 2014). Under Ren,
an otherwise credible applicant must be provided with “notice and an opportunity
to either produce [certain corroborative] evidence or explain why it is unavailable
before [the IJ rules] that the applicant has failed in his obligation to provide
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corroborative evidence and therefore failed to meet his burden of proof.” 648 F.3d
at 1090. Zhi and Lai extended Ren’s analysis to cases, like this one, in which “the
IJ found the petitioner not credible; the IJ relied on the lack of corroboration as part
of that ‘overall credibility determination’; and, on review, we rejected each of the
IJ’s other reasons—besides lack of corroboration—for the adverse credibility
finding.” Lai, 773 F.3d at 976 (citation omitted).
We find that Gurung’s testimony was neither contradictory nor insufficiently
vague. He also lacked notice that the IJ would find his testimony less than credible,
and that, for this reason, corroborative evidence would be critical to the her
credibility determination. We therefore remand Gurung’s case to provide Gurung
an opportunity to provide the corroborating evidence the IJ believes is required.
DENIED IN PART and REMANDED.
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