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.

1 At a stated term of the United States Court of Appeals for 

2 the Second Circuit, held at the Thurgood Marshall United States 

3 Courthouse, 40 Foley Square, in the City of New York, on the 

14th 4 day of July, two thousand fifteen. 

5 

6 PRESENT: 

7 JON O. NEWMAN,

8 DENNIS JACOBS, 

9 RAYMOND J. LOHIER, JR.,

10 Circuit Judges. 

11 _____________________________________ 

12 

13 MOHAMEDOU DICKO, 

14 Petitioner, 

15 

16 v. 14-2081 

17 NAC 

18 

19 LORETTA E. LYNCH, UNITED STATES 

20 ATTORNEY GENERAL, 

21 Respondent. 

22 _____________________________________ 

23 

24 FOR PETITIONER: Gary J. Yerman, New York, New York. 

25 

26 FOR RESPONDENT: Benjamin C. Mizer, Acting Assistant 

27 Attorney General; Russell J.E. 

28 Verby, Senior Litigation Counsel; 

29 Julia J. Tyler, Trial Attorney, 
2

1 Office of Immigration Litigation, 

2 United States Department of Justice, 

3 Washington, D.C. 

4 

5 UPON DUE CONSIDERATION of this petition for review of a 

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

7 ORDERED, ADJUDGED, AND DECREED that the petition for review is 

8 DISMISSED in part and in part DENIED. 

9 Petitioner Mohamedou Dicko seeks review of a May 21, 2014, 

10 decision of the BIA affirming a September 22, 2011, decision 

11 of an Immigration Judge (“IJ”) denying Dicko’s application for 

12 asylum, withholding of removal, and relief under the Convention 

13 Against Torture (“CAT”). In re Mohamedou Dicko, No. A079 578 

14 639 (B.I.A. May 21, 2014), aff’g No. A079 578 639 (Immig. Ct. 

15 N.Y. City Sept. 22, 2011). We assume the parties’ familiarity 

16 with the underlying facts and procedural history in this case. 

17 Under the circumstances of this case we review the IJ’s 

18 decision. See Mei Chai Ye v. U.S. Dep’t of Justice, 489 F.3d 

19 517, 523 (2d Cir. 2007). The applicable standards of review 

20 are well established. See 8 U.S.C. § 1252(b)(4)(B); see also 

21 Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). 

22 Because Dicko did not challenge the IJ’s denial of CAT relief 

23 before the BIA, we lack jurisdiction to review the denial of 
3

1 that relief. 8 U.S.C. § 1252(d)(1); Karaj v. Gonzales, 462 

2 F.3d 113, 119 (2d Cir. 2006). 

3 Asylum 

4 An alien must demonstrate by clear and convincing evidence 

5 that his application for asylum was filed within one year of 

6 his arrival in the United States. 8 U.S.C. § 1158(a)(2)(B). 

7 However, an untimely filing may be excused if the applicant 

8 demonstrates “either the existence of changed circumstances 

9 which materially affect the applicant’s eligibility for asylum 

10 or extraordinary circumstances relating to the delay in filing 

11 an application within the [one-year] period.” 8 U.S.C. 

12 § 1158(a)(2)(D). 

13 We lack jurisdiction to review the agency’s determination 

14 that an asylum application is untimely and does not warrant an 

15 exception to the filing deadline. 8 U.S.C. § 1158(a)(3). 

16 However, we retain jurisdiction to review “constitutional 

17 claims or questions of law.” 8 U.S.C. § 1252(a)(2)(D). Dicko 

18 argues that the agency erred in concluding that he did not 

19 establish extraordinary circumstances excusing the late filing 

20 of his application because his application was only two weeks 

21 late. There is no exception to the filing deadline for 
4

1 applications filed close to the deadline, and Dicko’s argument 

2 in this regard does not raise a question of law. See 8 U.S.C. 

3 § 1158(a)(2)(B), (D), (3). Dicko also argues that the agency 

4 erred by not considering whether his late filing may be excused 

5 by 8 C.F.R. § 1208.4(a)(5)(iv), which states that 

6 “extraordinary circumstances” may include a situation in which 

7 an alien maintained a lawful non-immigrant status until a 

8 reasonable period before the filing of the asylum application. 

9 However, Dicko did not raise this argument either before the 

10 IJ or the BIA and as a result it is unexhausted. Lin Zhong v. 

11 U.S. Dep’t of Justice, 480 F.3d 104, 119-20, 124 (2d Cir. 2007). 

12 Accordingly, we decline to consider it. For these reasons, we 

13 lack jurisdiction to review the agency’s denial of Dicko’s 

14 asylum application as untimely. 

15 Withholding of Removal 

16 The IJ denied Dicko’s application for withholding of 

17 removal because she determined that he was not credible. She 

18 also concluded that he had not established his identity or his 

19 Mauritanian citizenship. Instead, she ordered him removed to 

20 Mali, the country of nationality listed on his record of 

21 admission into the United States and the country to which the 
5

1 Government recommended removal. Dicko has not challenged, 

2 either before the agency or here, the designated country of 

3 removal. Further, he claims that he was persecuted, and will 

4 be persecuted in the future, in Mauritania. He raises no fear 

5 of persecution in Mali. Withholding of removal is 

6 country-specific: an alien will not be removed to a country 

7 where his life or freedom would be threatened. 8 U.S.C. 

8 § 1231(b)(3)(A). Here, Dicko does not claim that his life or 

9 freedom would be threatened in Mali. Accordingly, he has not 

10 met his burden of showing that removal to Mali should be 

11 withheld. 

12 For the foregoing reasons, the petition for review is 

13 DISMISSED in part and in part DENIED. As we have completed our 

14 review, any stay of removal that the Court previously granted 

15 in this petition is VACATED, and any pending motion for a stay 

16 of removal in this petition is DISMISSED as moot. Any pending 

17 request for oral argument in this petition is DENIED in 

18 accordance with Federal Rule of Appellate Procedure 34(a)(2), 

19 and Second Circuit Local Rule 34.1(b). 

20 FOR THE COURT: 

21 Catherine O=Hagan Wolfe, Clerk