625 F. App'x 561
2d Cir.2015Background
- Petitioner Mario Ordonez Azmen, a Guatemalan national, sought asylum and statutory withholding of removal after arriving in the U.S. in 2003; his asylum application was filed in 2008 and thus untimely under the one-year rule.
- Ordonez alleged gang-related threats and testified to murders of acquaintances, including one in 2004 and a second in April 2010 that postdated his asylum filing.
- The IJ denied asylum and withholding; the BIA affirmed, but mischaracterized the record by stating Ordonez had not raised "changed circumstances" before the IJ and that he testified only to a 2004 murder.
- The Second Circuit initially denied review of the asylum claim but granted review and relief as to statutory withholding in a prior summary order; petitioner sought rehearing on the asylum timeliness issue.
- On rehearing the Court held the BIA erred in its factual characterization and retained jurisdiction to consider whether the 2010 murder constituted "changed circumstances" excusing the late filing.
- The Court remanded to the BIA to decide whether changed circumstances for the one-year asylum exception must predate the application or may occur after filing and be considered in determining timeliness.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the BIA mischaracterized the record about "changed circumstances" | Ordonez: BIA erred — he raised and testified about a 2010 murder before the BIA and before this appeal | Gov: BIA’s factual statements were harmless or correct | Held: BIA mischaracterized the record; Court retained jurisdiction to consider changed-circumstances claim |
| Whether a post-filing event (2010 murder) can qualify as "changed circumstances" excusing untimely asylum | Ordonez: The 2010 murder materially affected his eligibility and excuses the one-year delay | Gov: (Implicit) changed circumstances must be considered according to existing agency practice; issue better resolved by BIA | Held: Remanded — BIA to decide whether changed circumstances must predate application or may occur after filing and be treated in timeliness analysis |
| Jurisdiction to review BIA’s changed-circumstances determination | Ordonez: Court can review because BIA misstated facts and legal error exists | Gov: Jurisdiction limited over discretionary factual findings absent legal/constitutional question | Held: Because BIA misstated facts and petitioner raised a legal issue, Court retained jurisdiction |
| Whether the prior summary order should be withdrawn/clarified | Ordonez: Rehearing necessary to address asylum timeliness and BIA error | Gov: Opposes rehearing (implicit) | Held: Petition for rehearing granted; prior summary order amended and remanded to BIA |
Key Cases Cited
- Zaman v. Mukasey, 514 F.3d 233 (2d Cir.) (court may consult both IJ and BIA opinions)
- Gui Yin Liu v. INS, 508 F.3d 716 (2d Cir.) (retention of jurisdiction where BIA mischaracterizes record)
- Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315 (2d Cir.) (discussion of timing and use of changed circumstances evidence)
- Weinong Lin v. Holder, 763 F.3d 244 (2d Cir.) (changed circumstances must materially affect eligibility by eliciting or strengthening fear)
- Poole v. Mukasey, 527 F.3d 257 (2d Cir.) (generally deferring to BIA to construe statutes it administers)