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Fisenko v. Lynch

United States Court of Appeals, Sixth Circuit

April 1, 2016

Milana Artashestovna Fisenko, Petitioner,
v.
Loretta E. Lynch, Attorney General, Respondent.

         On Petition for Review from the United States Board of Immigration Appeals. No. A094 219 115.

         ON BRIEF:

          E. Dennis Muchnicki, Columbus, Ohio, for Petitioner.

          Ann M. Welhaf, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

          Before: GRIFFIN and STRANCH, Circuit Judges; GWIN, District Judge. [**]

          OPINION

          JANE B. STRANCH, CIRCUIT JUDGE.

         In 2009, Milana Fisenko was denied asylum, withholding of removal, and protection under the Convention Against Torture (CAT). After Fisenko was subsequently granted withholding of removal, she moved for reconsideration of her asylum application under 8 C.F.R. § 1208.16(e), which the immigration judge (IJ) and the Board of Immigration Appeals (BIA) denied. We hold that the IJ properly denied the motion for reconsideration and thus DENY Fisenko's petition for review.

         I. BACKGROUND

         Milana Fisenko is a citizen of Russia who was admitted to the United States in August 2006 as a nonimmigrant student. She was born in Azerbaijan (then part of the U.S.S.R.), and is ethnically Armenian. Fisenko married one month after entering the United States, and her new husband added her to his asylum application as a derivative beneficiary. An IJ denied her husband's asylum application in October 2006. Around the same time, Fisenko's student status was terminated for nonattendance.

         In October 2007, the Department of Homeland Security (DHS) charged Fisenko with removability under 8 U.S.C. § 1227(a)(1)(C)(i) for failing to comply with the conditions of her nonimmigrant status. Fisenko appeared before an IJ in March 2008, conceded removability, and applied for asylum, withholding of removal, and CAT relief. Although Fisenko filed her application more than a year after arriving in the United States, rendering it time barred under 8 U.S.C. § 1158(a)(2)(B), she claimed that "extraordinary circumstances" excused the delay. Specifically, she argued, her attorney had advised her that she was covered by her husband's application-even though that application did not include her independent claims for asylum.

         The IJ denied Fisenko's asylum application as untimely in June 2009. The IJ refused to grant an exception for "extraordinary circumstances" on the ground that "[a]s of October 2006, [Fisenko] was aware that her husband's application had been denied, " but "she waited nearly 18 more months before filing her application." (A.R. at 172-74.) Although the IJ found that Fisenko had been subjected to persecution, he concluded that this persecution was not based on a protected characteristic. The IJ concluded, furthermore, that Fisenko had not shown a clear probability of future persecution based on a protected characteristic or torture if removed to Russia. Accordingly, the IJ denied withholding of removal and CAT relief.

         Fisenko appealed to the BIA. The BIA dismissed Fisenko's appeal of the IJ's asylum decision. The BIA sustained Fisenko's appeal of the IJ's withholding of removal decision, however, concluding that she had demonstrated a clear probability of persecution based on her Armenian ethnicity, a protected characteristic. The BIA remanded to the IJ, who granted withholding of removal.

         In September 2012, Fisenko moved for reconsideration of the IJ's order denying asylum. The IJ denied her motion, and the BIA dismissed ...


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