15-1610
Gurung v. Boente
BIA
Sichel, IJ
A087 651 237
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.
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
8th day of February, two thousand seventeen.
PRESENT:
REENA RAGGI,
GERARD E. LYNCH,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_____________________________________
JIJEN SINGH GURUNG,
Petitioner,
v. 15-1610
NAC
DANA J. BOENTE, ACTING UNITED
STATES ATTORNEY GENERAL,
Respondent.*
_____________________________________
FOR PETITIONER: Jijen Singh Gurung, pro se, Forest
Hills, N.Y.
FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
Assistant Attorney General; Carl H.
McIntyre Assistant Director; Justin
R. Markel, Senior Litigation
Counsel, Office of Immigration
* The Clerk of Court is respectfully requested to amend the caption
to conform to the above.
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
DISMISSED.
Petitioner Jijen Singh Gurung, a native and citizen of
Nepal, seeks review of an April 28, 2015, decision of the BIA,
affirming a November 19, 2013, decision of an Immigration Judge
(“IJ”) denying Gurung’s application for asylum as time barred.
In re Jijen Singh Gurung, No. A087 651 237 (B.I.A. Apr. 28,
2015), aff’g No. A087 651 237 (Immig. Ct. N.Y. City Nov. 19,
2013). We assume the parties’ familiarity with the underlying
facts and procedural history in this case.
Under the circumstances of this case, we have reviewed both
the IJ’s and BIA’s opinions. Zaman v. Mukasey, 514 F.3d 233,
237 (2d Cir. 2008). An asylum application must be filed within
one year of an applicant’s arrival in the United States, absent
“changed circumstances which materially affect the applicant’s
eligibility for asylum.” 8 U.S.C. § 1158(a)(2)(B), (D). Our
jurisdiction to review the agency’s pretermission of asylum on
timeliness grounds is limited to “constitutional claims or
questions of law.” 8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D). To
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determine whether jurisdiction exists in a particular case, we
“study the arguments asserted” and ask, “regardless of the
rhetoric employed in the petition, whether it merely quarrels
over the correctness of the factual findings or justification
for the discretionary choices,” in which case we would lack
jurisdiction. Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d
315, 329 (2d Cir. 2006).
Gurung arrived in the United States in 2005 and applied for
asylum four years later in 2009. He asserts that the agency
violated due process when it failed to consider that the
“political instability and uncertainty” in Nepal between 2005
and 2009, the Maoists’ victory in the April 2008 national
elections and their “complete takeover of the Nepalese
government by 2009,” and Gurung’s loss of hope that the
political situation in Nepal would improve were changed
circumstances excusing the untimely filing. Pet’r’s Br. at 9.
This assertion is belied by the record. The IJ addressed
Gurung’s testimony concerning events in 2008 and 2009 and his
hopes that the situation in Nepal would improve, but concluded
that Gurung failed to establish changed circumstances given,
inter alia, the persecution that he suffered prior to departing
Nepal in 2005. Accordingly, the IJ did not ignore any evidence
or testimony. See Xiao Ji Chen, 471 F.3d at 340 n.17 (holding
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that the Court presumes that the agency “has taken into account
all of the evidence before [it], unless the record compellingly
suggests otherwise”). Gurung’s remaining challenges to the
changed circumstances ruling are mere factual challenges that
we do not have jurisdiction to review.
For the foregoing reasons, we DISMISS the petition for
review.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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