Milana Fisenko v. Loretta Lynch, 826 F.3d 287

Milana Fisenko, a Russian citizen of Armenian ethnicity, entered the U.S. in 2006 as a student, married, and was later charged with removability for falling out of status.
She applied for asylum, withholding of removal, and CAT relief more than one year after arrival; the IJ found the asylum application untimely and declined to excuse the delay under the "extraordinary circumstances" exception. The IJ also denied withholding and CAT relief.
The BIA affirmed the asylum timeliness denial but reversed the IJ on withholding of removal, finding a clear probability of persecution based on Armenian ethnicity, and remanded; the IJ then granted withholding.
After obtaining withholding, Fisenko moved for reconsideration of the IJ’s earlier asylum denial under 8 C.F.R. § 1208.16(e); the IJ denied the motion and the BIA dismissed her appeal.
Fisenko appealed, arguing § 1208.16(e) required reconsideration of an asylum denial after she was granted withholding because the asylum denial involved discretionary decisionmaking.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether 8 C.F.R. § 1208.16(e) requires reconsideration of an asylum denial that rested on untimeliness and refusal to apply the "extraordinary circumstances" exception	Fisenko: § 1208.16(e) covers discretionary asylum denials, so the IJ had to reconsider after withholding was granted	Government/BIA: § 1208.16(e) applies only to discretionary denials after an applicant is found statutorily eligible (second-step discretionary denials), not to timeliness rulings	The court held § 1208.16(e) does not apply to untimeliness denials; BIA did not abuse its discretion and denial of reconsideration was proper
Whether the court has jurisdiction to review the IJ’s discretionary refusal to apply the extraordinary-circumstances exception to timeliness	Fisenko: implicit challenge to IJ’s discretionary refusal	Government: timeliness discretionary rulings are discretionary/factual and not reviewable	The court declined to review the discretionary timeliness determination for lack of jurisdiction

Khalili v. Holder, 557 F.3d 429 (6th Cir.) (treat BIA opinion as final agency determination when it issues separate opinion)
Sswajje v. Ashcroft, 350 F.3d 528 (6th Cir.) (BIA denial of reconsideration reviewed for abuse of discretion)
Allabani v. Gonzales, 402 F.3d 668 (6th Cir.) (definition of BIA abuse of discretion)
Vincent v. Holder, 632 F.3d 351 (6th Cir.) (limits on judicial review of untimely asylum denials)
Huang v. I.N.S., 436 F.3d 89 (2d Cir.) (reconsideration under §1208.16(e) tied to discretionary denials after eligibility)
Yu v. Ashcroft, 364 F.3d 700 (6th Cir.) (asylum involves eligibility and discretionary grant/denial steps)
Kouljinski v. Keisler, 505 F.3d 534 (6th Cir.) (two-step asylum analysis: eligibility then discretion)
Zuh v. Mukasey, 547 F.3d 504 (4th Cir.) (discussion of discretionary asylum denials)
Kalubi v. Ashcroft, 364 F.3d 1134 (9th Cir.) (discretionary denial concept in asylum context)
Doherty v. U.S. Dep’t of Justice, 908 F.2d 1108 (2d Cir.) (historical practice and purpose of discretionary denials)