         12-4930
         Jalloh v. Holder
                                                                                       BIA
                                                                                    Hom, IJ
                                                                               A078 216 941
                             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 A SUMMARY
     ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 16th day of October, two thousand fourteen.
 5
 6       PRESENT:
 7                ROSEMARY S. POOLER,
 8                BARRINGTON D. PARKER,
 9                GERARD E. LYNCH,
10                     Circuit Judges.
11       _____________________________________
12
13       RAMATA JALLOH,
14                Petitioner,
15
16                          v.                                  12-4930
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Andy Wong, New York,N.Y.
24
25       FOR RESPONDENT:               Stuart F. Delery, Assistant Attorney
26                                     General; Luis E. Perez, Senior
27                                     Litigation Counsel; Timothy B.
28                                     Stanton, Trial Attorney, Office of
29                                     Immigration Litigation, United
30                                     States Department of Justice,
31                                     Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

 2   Board of Immigration Appeals (“BIA”) decision, it is hereby

 3   ORDERED, ADJUDGED, AND DECREED that the petition for review

 4   is GRANTED.

 5       Petitioner Ramata Jalloh, a native and citizen of

 6   Sierra Leone, seeks review of a November 20, 2012, order of

 7   the BIA, affirming the January 25, 2011, decision of

 8   Immigration Judge (“IJ”) Sandy Hom, which denied her

 9   application for asylum and request for relief under the

10   Convention Against Torture (“CAT”), and granted her request

11   for withholding of removal.   In re Ramata Jalloh, No. A078

12   216 941 (B.I.A. Nov. 20, 2012), aff’g No. No. A078 216 941

13   (Immig. Ct. New York City Jan. 25, 2011).   We assume the

14   parties’ familiarity with the underlying facts and

15   procedural history in this case.

16       Under the circumstances of this case, we review the

17   IJ’s decision as modified by the BIA decision.   See Yang v.

18   U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).

19       I.   Jurisdiction

20       Our jurisdiction to review orders of removal is limited

21   to review of “final order[s] of removal.”   8 U.S.C.

22   § 1252(a)(1).   An order of removal is “final” upon the

23   earlier of the BIA’s affirmance of the immigration judge’s

                                   2
 1   order of removal or the expiration of the time to appeal the

 2   immigration judge’s order of removal to the BIA.       8 U.S.C.

 3   § 1101(a)(47)(B)(i), (ii); see Arias Chupina v. Holder, 570

 4   F.3d 99, 103 (2d Cir. 2009).    The BIA has concluded that

 5   when a case is remanded to the IJ for the completion of

 6   background checks pursuant to 8 C.F.R. § 1003.47(h), the IJ

 7   has full jurisdiction over the case and “no final order

 8   exists.”   Matter of M-D-, 24 I. & N. Dec. 138, 141 (BIA

 9   2007); see also Vakker v. Attorney General of U.S., 519 F.3d

10   143, 147 (3d Cir. 2008) (holding that when the BIA remands a

11   case to the IJ for background checks pursuant to 8 C.F.R.

12   § 1003.47(h), the IJ’s decision following remand becomes the

13   “final order” of removal).

14       Here, the BIA remanded for background checks and

15   security investigation pursuant to      8 C.F.R. § 1003.47(h).

16   Thus, at the time Jalloh petitioned for review in this

17   Court, the order of removal was not final and the Court

18   lacked jurisdiction to consider the petition.        See Matter of

19   M-D-, 24 I. & N. Dec. at 141.       However,   a premature

20   petition for review from a non-final order of removal may be

21   cured, and ripen into a valid petition for review, if a

22   final order of removal has been entered by the time the


                                     3
 1   petition is heard, and the government suffers no prejudice.

 2   See Herrera-Molina v. Holder, 597 F.3d 128, 132 (2d Cir.

 3   2010).    The IJ issued an order of removal on March 13, 2013,

 4   and the government agrees that a final order now exists and

 5   the case is ripe for review.     As a result, Jalloh’s

 6   premature petition for review has now ripened into a valid

 7   petition for review which we may consider on the merits.

 8   See Herrera-Molina, 597 F.3d at 132.

 9       II.    Merits

10       An asylum applicant must demonstrate by clear and

11   convincing evidence that she filed her application within

12   one year after the date of arrival in the United States.       8

13   U.S.C. § 1158(a)(2)(B).     The law provides an exception to

14   the one-year bar if the applicant demonstrates either

15   changed or extraordinary circumstances.     8 U.S.C.

16   § 1158(a)(2)(D).    Under 8 U.S.C. § 1158(a)(3), no court

17   shall have jurisdiction to review the agency’s finding that

18   an asylum application was untimely under 8 U.S.C.

19   § 1158(a)(2)(B), or its finding of neither changed nor

20   extraordinary circumstances excusing the untimeliness under

21   8 U.S.C. § 1158(a)(2)(D).     However, the Court retains

22   jurisdiction to review constitutional claims and questions


                                     4
 1   of law.   8 U.S.C. § 1252(a)(2)(D).    The “proper

 2   interpretation of the one-year deadline provision” presents

 3   a question of law, see Joaquin-Porras v. Gonzales, 435 F.3d

 4   172, 178 (2d Cir. 2006), as does the application of an

 5   exception to the one-year filing deadline.     See Shi Jie Ge

 6   v. Holder, 588 F.3d 90, 94 (2d Cir. 2009).

 7       In this case, Jalloh raises two questions of law:

 8   (1) whether the agency used the proper legal standard to

 9   find that her original claim, based on her rape by rebels,

10   was untimely; and (2) whether her claim based on forced

11   female genital mutilation (“FGM”) was subject to the one-

12   year bar at all, given that the BIA reopened sua sponte

13   because she demonstrated ineffective assistance of counsel.

14   Because of agency errors, we remand.

15              A.   Original Asylum Application

16        Jalloh filed her asylum application in March 2000,

17   prior to the 2005 REAL ID Act.     Accordingly, pre-REAL ID Act

18   law, including the requirements for credibility findings

19   established in Secaida-Rosales v. I.N.S., 331 F.3d 297 (2d

20   Cir. 2003), applies to her testimony regarding her date of

21   entry.    See Liang Chen v. U.S. Att’y Gen., 454 F.3d 103, 107

22   n.2 (2d Cir. 2006) (noting that Secaida-Rosales “remain[s]

23
                                    5
 1   good law with regard to asylum applications filed before May

 2   11, 2005”).

 3       In pre-REAL ID Act cases, an adverse credibility

 4   determination must be based on “specific, cogent reasons”

 5   that “bear a legitimate nexus” to the finding, and any

 6   discrepancy must be “substantial” when measured against the

 7   record as a whole.     See Secaida-Rosales, 331 F.3d at 307.

 8   Inconsistencies need not be fatal if they are “minor and

 9   isolated,” and the testimony is otherwise generally

10   consistent, rational, and believable.     See Diallo v. INS,

11   232 F.3d 279, 288 (2d Cir. 2000).

12       The IJ found Jalloh’s testimony not credible regarding

13   her date of entry based on three findings: (1) Jalloh

14   testified she left Guinea on January 25, 1999, was on a boat

15   for two weeks, and yet could not explain how that resulted

16   in her arrival on February 10, 2000; (2) Jalloh testified in

17   2010 that she traveled to New York with two other stowaways,

18   but in 2001 testified she traveled with t-shirt vendors, and

19   her explanation was unconvincing; and (3) Jalloh testified

20   in 2010 that she arranged to leave Guinea “upon a payment of

21   money,” but in 2001 testified that she traveled without

22   paying any money.     The BIA relied upon these same three

23   findings.     However, these discrepancies are not supported by
                                     6
 1   the record and are not “substantial” as required under

 2   Secaida-Rosales.

 3              B.   Updated Asylum Application

 4        Jalloh alleged that she entered the United States in

 5   2000, and applied for asylum based on her forced FGM claim

 6   in 2009.   She argues that the BIA’s reopening of her

 7   proceedings sua sponte to present her FGM claim, and

 8   ineffective assistance of counsel, constitute extraordinary

 9   circumstances that toll the filing deadline.    The government

10   argues that the issue is unexhausted, as it was not raised

11   before the BIA.

12       We generally require that petitioners raise to the BIA

13   the specific issues they later raise in this Court.     See

14   Foster v. INS, 376 F.3d 75, 78 (2d Cir. 2004); Zhong v. U.S.

15   Dep’t of Justice, 480 F.3d 104, 119-20 (2d Cir. 2007).

16   However, the Court has never held that a petitioner is

17   limited to the “exact contours” of his argument to the

18   agency.    Gill v. INS, 420 F.3d 82, 85-86 (2d Cir. 2005).    On

19   the contrary, the Court has held that 8 U.S.C. § 1252(d)(1)

20   does not prevent it from considering “specific, subsidiary

21   legal arguments or arguments by extension,” even if those

22   arguments were not presented below.    Id. at 86; see also

23   Restrepo v. McElroy, 369 F.3d 627, 633 n.10 (2d Cir. 2004)
                                    7
 1   (stating that the Court “enjoy[s] broad discretion to

 2   consider subsidiary legal arguments that were not

 3   specifically raised below”).     Here, we conclude that

 4   Jalloh’s argument that she demonstrated an extraordinary

 5   circumstance tolling the one-year filing deadline is a

 6   subsidiary argument of her challenge to the agency’s

 7   pretermission of her asylum application, and we deem the

 8   argument exhausted.

 9       The BIA’s 2008 order stated that it was reopening in an

10   exercise of sua sponte authority “to resolve any issue

11   regarding the relevant time and number bars” and held that

12   Jalloh had demonstrated ineffective assistance of counsel.

13   The BIA exercises sua sponte authority only in

14   “extraordinary circumstances.”     See Johnson v. Ashcroft, 378

15   F.3d 164, 171 n.8 (2d Cir. 2004).     Ineffective assistance of

16   counsel can constitute an extraordinary circumstance.     See 8

17   C.F.R. § 1208.4(a)(5)(iii); Ivanishvili v. U.S. Dep’t of

18   Justice, 433 F.3d 332, 338 (2d Cir. 2006).     The BIA’s very

19   act of reopening sua sponte demonstrated an extraordinary

20   circumstance that tolled the time for filing the claim.

21

22

23
                                    8
1       For the foregoing reasons, the petition for review is

2   GRANTED and the case is REMANDED to the BIA for further

3   proceedings consistent with this order.

4                              FOR THE COURT:
5                              Catherine O’Hagan Wolfe, Clerk
6
7
8




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