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Linares-Urrutia v. Sessions

United States Court of Appeals, Second Circuit

March 7, 2017

JOSE LINARES-URRUTIA, Petitioner
v.
JEFFERSON B. SESSIONS, III, U.S. Attorney General, [*] Respondent.

          Argued: January 4, 2017

         An asylum claim 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). Petitioner, who was illegally present in the United States after multiple deportations, crossed into Canada by bridge, was detained four hours by the Canada Border Services Agency, and was then returned back over the bridge. This appeal presents the question whether that return counts as his "last arrival" into the United States, thus giving him an additional one year from that date to file an asylum application. Our prior precedent would foreclose that result. But deference to a subsequent Board of Immigration Appeals ("BIA") opinion raises a doubt that the BIA is better suited to resolve. Accordingly, we grant the petition in part and remand the case to the BIA to determine whether Linares-Urrutia's asylum claim was timely. We dismiss the petition as to the remaining claims.

          ROBERT J. MALIONEK (with George C. Chipev on the brief, Washington, D.C.), Latham & Watkins, New York, New York, for Appellant Jose Linares-Urrutia.

          M. JOCELYN LOPEZ WRIGHT (with Benjamin C. Mizer, Principal Deputy Assistant Attorney General, and Melissa Neiman-Kelting, Senior Litigation Counsel, Office of Immigration Litigation, on the brief), for Appellee Jeff Sessions.

          Before: JACOBS, SACK, and CARNEY, Circuit Judges.

          DENNIS JACOBS, Circuit Judge:

         Petitioner Jose Linares-Urrutia seeks review of a November 13, 2014 decision by the Board of Immigration Appeals ("BIA") dismissing his appeal from the denial of applications for asylum, withholding of removal, and relief under the Convention Against Torture. An asylum claim 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). Petitioner, who was illegally present in the United States after multiple deportations, crossed into Canada by bridge, was detained four hours by the Canada Border Services Agency, and was then returned back over the bridge. This appeal presents the question whether that return counts as his "last arrival" into the United States, thus giving him an additional one year from that date to file an asylum application. This Court's prior precedent would foreclose that result. But deference to a subsequent BIA opinion raises a doubt that the BIA is better suited to resolve. Accordingly, we grant the petition in part and remand the case to the BIA to determine whether Linares-Urrutia's asylum claim was timely. We dismiss the petition as to the remaining claims.

         I

         Linares-Urrutia is a native and citizen of El Salvador who has lived off-and-on in the United States for nearly 30 years. He first entered in approximately 1988, and was deported that same year. He illegally reentered shortly thereafter. In 1995, he was apprehended while again illegally reentering, this time from Canada, and was granted delayed voluntary departure. In 2011, the Department of Homeland Security reinstated his 1988 removal order and removed him back to El Salvador. Linares-Urrutia was convicted of four criminal offenses between his initial entry in 1988 and his 2011 removal: larceny and unlawful entry in Virginia in 1994, criminal mischief with intent to damage property in New York in 2004, and seventh-degree criminal possession of cocaine in New York in 2007.

         Linares-Urrutia yet again reentered illegally shortly after his 2011 removal. Then, on April 25, 2012, he walked across the Peace Bridge from New York into Canada, apparently to seek revival of an asylum claim there. Upon entering Canada, the Canadian border authorities detained him for approximately four hours and then returned him to the United States. Linares-Urrutia has produced a document by the Canada Border Services Agency reflecting that he "Departed Canada from Ft Erie" on April 25, 2012.

         The Department of Homeland Security initiated the latest of his removal proceedings in 2013. In response, Linares-Urrutia filed (pro se) a petition for asylum, withholding of removal, and relief under the Convention Against Torture. During the proceedings before the Immigration Judge ("IJ") and the BIA, Linares-Urrutia was his only witness.

         All Linares-Urrutia's claims arise from an allegation that the Salvadoran government abused and tortured him when he was a member of a revolutionary student group in the 1980s. Linares-Urrutia testified that the Salvadoran military shot him in the leg, detained him, beat him repeatedly, applied electricity to his genitals, and threatened to kill him. Although a different regime is now in power, Linares-Urrutia said he still fears persecution if he returns to El Salvador because his fellow former revolutionaries and their families believe that he cooperated with the former regime, and will seek revenge.

         On August 21, 2013, the IJ denied Linares-Urrutia's claims and ordered him removed (yet again). The primary evidence Linares-Urrutia presented of his brief trip to Canada was his own testimony. Without commenting on the possible effect of his asserted brief time in Canada on the timeliness of his application, the IJ ruled that Linares-Urrutia's asylum claim was time-barred. Linares-Urrutia did not present the Canadian border document to the IJ at this proceeding. The IJ also denied Linares-Urrutia's other claims because he found that Linares-Urrutia had failed to establish either past persecution or a likelihood of future persecution if returned to El Salvador.

         The BIA affirmed in part and remanded in part. It agreed with the IJ's untimeliness conclusion, holding that Linares-Urrutia presented insufficient evidence to show that he visited Canada in April 2012. But the BIA held that the IJ failed to indicate sufficiently whether Linares-Urrutia's testimony was credible as to past persecution ...


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