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