Linares-Urrutia v. Sessions
850 F.3d 477
| 2d Cir. | 2017Background
- Petitioner Jose Linares-Urrutia, a Salvadoran national, repeatedly entered the U.S. unlawfully after prior removals and was removed in 2011; he reentered unlawfully thereafter.
- On April 25, 2012, Linares-Urrutia walked across the Peace Bridge into Canada, was detained by Canadian authorities for ~4 hours, and was returned to the United States the same day; a Canada Border Services Agency document records his departure from Canada that day.
- He filed a U.S. asylum application on April 18, 2013; asylum must be filed within one year of the alien’s “last arrival” in the United States (8 C.F.R. § 208.4(a)(2)(ii)).
- The IJ found Linares-Urrutia’s asylum claim time-barred and denied relief; the BIA initially agreed the 2012 Canada visit was not proven, remanded on credibility for persecution findings, and later affirmed denying relief, again rejecting proof of the Canada visit.
- The Second Circuit granted review in part (limited by jurisdictional constraints because of a drug conviction) to decide whether the brief Canada return constitutes the “last arrival,” remanded to the BIA to apply its later precedent and consider the Canadian document.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a brief trip into Canada and immediate return (detained ~4 hours) counts as petitioner’s “last arrival” for the 1‑year asylum filing rule | Linares‑Urrutia: the April 25, 2012 return to the U.S. is his last arrival, making his April 18, 2013 application timely | Government: Under Second Circuit precedent, brief trips abroad shouldn’t reset the “last arrival”; petitioner didn’t prove the Canada trip to IJ originally | Court: Remanded to BIA to apply its decision in Matter of F‑P‑R‑ (which treats “last arrival” literally) and to consider the Canadian document; granted petition in part |
| Applicability of binding precedent (Joaquin‑Porras) vs. later BIA construction (F‑P‑R‑) | Linares‑Urrutia: argues for applying BIA’s literal definition (counts his return) | Government: argued for applying circuit precedent that excludes brief trips | Court: Under Brand X deference, BIA’s later construction may control; remanded for BIA to apply F‑P‑R‑ to facts here |
| Whether IJ/BIA properly refused to consider the Canadian border document on remand because remand was for other issues | Linares‑Urrutia: the document was in the record on remand and should be considered | Government: initial IJ decision lacked the document, and remand was limited to persecution credibility issues | Court: Remand scope was not expressly limited; IJ and BIA should have considered the Canada document when resolving timeliness |
| Whether court can review IJ/BIA factual findings on future persecution and nexus (given petitioner’s criminal conviction) | Linares‑Urrutia: challenges to IJ factual findings on future persecution | Government: factual determinations are reviewed only for legal error; jurisdiction is limited | Court: Dismissed review of factual findings due to 8 U.S.C. § 1252(a)(2)(D); those portions of the petition were dismissed |
Key Cases Cited
- Joaquin‑Porras v. Gonzales, 435 F.3d 172 (2d Cir. 2006) (held brief trips abroad should not count as “last arrival”)
- National Cable & Telecommunications Ass'n v. Brand X Internet Servs., 545 U.S. 967 (2005) (agency construction of statute to be deferred to under certain conditions)
- Kone v. Holder, 596 F.3d 141 (2d Cir. 2010) (discussing humanitarian asylum standard based on past persecution)
- Rosario v. Holder, 627 F.3d 58 (2d Cir. 2010) (court may review BIA factual determinations when flawed by error of law)
- Pierre v. Holder, 738 F.3d 39 (2d Cir. 2013) (jurisdictional limits where petitioner has a controlled‑substance conviction)