Gurung v. Boente | Court Opinion

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

2 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

3 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

Opinions