14-2081 Dicko v. Lynch BIA Sichel, IJ A079 578 639 

### 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 TO A SUMMARY ORDER MUST SERVE A COPY**  **OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for**  1 **the Second Circuit, held at the Thurgood Marshall United States** 2 **Courthouse, 40 Foley Square, in the City of New York, on the** 3 **14 th**  **day of July, two thousand fifteen.** 4 5 **PRESENT:** 6 **JON O. NEWMAN,** 7 **DENNIS JACOBS,** 8 **RAYMOND J. LOHIER, JR.,** 9 Circuit Judges. 10

**_____________________________________** 11 12 **MOHAMEDOU DICKO,** 13 Petitioner **,** 14 15 **v. 14-2081** 16 **NAC** 17 18 **LORETTA E. LYNCH, UNITED STATES** 19 **ATTORNEY GENERAL,** 20 Respondent **.** 21

**_____________________________________** 22 23 **FOR PETITIONER:** Gary J. Yerman, New York, New York. 24 25 **FOR RESPONDENT:** Benjamin C. Mizer, Acting Assistant 26 Attorney General; Russell J.E. 27 Verby, Senior Litigation Counsel; 28 Julia J. Tyler, Trial Attorney, 292 Office of Immigration Litigation, 1 United States Department of Justice, 2 Washington, D.C. 3 4 UPON DUE CONSIDERATION of this petition for review of a 5 Board of Immigration Appeals (“BIA”) decision, it is hereby 6 ORDERED, ADJUDGED, AND DECREED that the petition for review is 7 DISMISSED in part and in part DENIED. 8 Petitioner Mohamedou Dicko seeks review of a May 21, 2014, 9 decision of the BIA affirming a September 22, 2011, decision 10 of an Immigration Judge (“IJ”) denying Dicko’s application for 11 asylum, withholding of removal, and relief under the Convention 12 Against Torture (“CAT”). In re Mohamedou Dicko, No. A079 578 13 639 (B.I.A. May 21, 2014), aff’g No. A079 578 639 (Immig. Ct. 14 N.Y. City Sept. 22, 2011). We assume the parties’ familiarity 15 with the underlying facts and procedural history in this case. 16 Under the circumstances of this cas e we review the IJ’s 17 decision. See Mei Chai Ye v. U.S. Dep’t of Justice , 489 F.3d 18 517, 523 (2d Cir. 2007). The applicable standards of review 19 are well established. See 8 U.S.C. § 1252(b)(4)(B); see also 20 Yanqin Weng v. Holder , 562 F.3d 510, 513 (2d Cir. 2009). 21 Because Dicko did not challenge the IJ’s denial of CAT relief 22 before the BIA, we lack jurisdiction to review the denial of 233 that relief. 8 U.S.C. § 1252(d)(1); Karaj v. Gonzales , 462 1 F.3d 113, 119 (2d Cir. 2006). 2 **Asylum** 3 An alien must demonstrate by clear and convincing evidence 4 that his application for asylum was filed within one year of 5 his arrival in the United States. 8 U.S.C. § 1158(a)(2)(B). 6 However, an untimely filing may be excused if the applicant 7 demonstrates “either the existence of changed circumstances 8 which materially affect the applicant’s eligibility for asylum 9 or extraordinary circumstances relating to the delay in filing 10 an application within the [one-year] period.” 8 U.S.C. 11 § 1158(a)(2)(D). 12 We lack jurisdiction to review the agency’s determination 13 that an asylum application is untimely and does not warrant an 14 exception to the filing deadline. 8 U.S.C. § 1158(a)(3). 15 However, we retain jurisdiction to review “constitutional 16 claims or questions of law.” 8 U.S.C. § 1252(a)(2)(D). Dicko 17 argues that the agency erred in concluding that he did not 18 establish extraordinary circumstances excusing the late filing 19 of his application because his appli cation was only two weeks 20 late. There is no exception to the filing deadline for 214 applications filed close to the deadline, and Dicko’s argument 1 in this regard does not raise a question of law. See 8 U.S.C. 2 § 1158(a)(2)(B), (D), (3). Dicko also argues that the agency 3 erred by not considering whether his late filing may be excused 4 by 8 C.F.R. § 1208.4(a)(5)(iv), which states that 5 “extraordinary circumstances” may include a situation in which 6 an alien maintained a lawful non-immigrant status until a 7 reasonable period before the filing of the asylum application. 8 However, Dicko did not raise this argument either before the 9 IJ or the BIA and as a result it is unexhausted. Lin Zhong v. 10 U.S. Dep’t of Justice , 480 F.3d 104, 119-20, 124 (2d Cir. 2007). 11 Accordingly, we decline to consider it. For these reasons, we 12 lack jurisdiction to review the agency’s denial of Dicko’s 13 asylum application as untimely. 14 **Withholding of Removal** 15 The IJ denied Dicko’s application for withholding of 16 removal because she determined that he was not credible. She 17 also concluded that he had not established his identity or his 18 Mauritanian citizenship. Instead, she ordered him removed to 19 Mali, the country of nationality listed on his record of 20 admission into the United States and the country to which the 215 Government recommended removal. Dicko has not challenged, 1 either before the agency or here, the designated country of 2 removal. Further, he claims that he was persecuted, and will 3 be persecuted in the future, in Mauritania. He raises no fear 4 of persecution in Mali. Withholding of removal is 5 country-specific: an alien will not be removed to a country 6 where his life or freedom would be threatened. 8 U.S.C. 7 § 1231(b)(3)(A). Here, Dicko does not claim that his life or 8 freedom would be threatened in Mali. Accordingly, he has not 9 met his burden of showing that removal to Mali should be 10 withheld. 11 For the foregoing reasons, the petition for review is 12 DISMISSED in part and in part DENIED. As we have completed our 13 review, any stay of removal that the Court previously granted 14 in this petition is VACATED, and any pending motion for a stay 15 of removal in this petition is DISMISSED as moot. Any pending 16 request for oral argument in this petition is DENIED in 17 accordance with Federal Rule of Appellate Procedure 34(a)(2), 18 and Second Circuit Local Rule 34.1(b). 19

FOR THE COURT: 20 Catherine O = Hagan Wolfe, Clerk 21