20

- 1840 Perez Nagahama v. Garland BIA Straus , IJ A 20 8 484 537 

### 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 FED**  **ERAL 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. At a stated term of the United States Court of Appeals**  1 **for the Second Circuit, h**  **eld at the Thurgood Marshall** 2 **United States Courthouse, 40 Foley Square, in the City of**  3 **New York, on the 30**  **th da**  **y of November,**  **two thousand twenty** 
**** 4 **two**

**.** 5 6 **PRESENT:** 7 **RICHARD C. WESLEY ,**  8 **JOSEPH F. BIANCO ,**  9 **ALISON J. NATHAN ,**  10 **Circuit Judges.** 11

**_____________________________________** 12 13 **YUMIKO DARDANETT PEREZ NAGAHAMA,** 14 **AKA YUMIKO PEREZ ,**  15 **Petitioner ,**  16 17
**v. 20** 

**- 1**  **840** 18 **NAC** 19 **MERRICK B. GARLAND, UNITED**  20 **STATES ATTORNEY GENERAL**  **,** 21 **R espondent** 

**.** 22

**_____________________________________** 23 24 25 **FOR PETITIONER :**  Genet Getachew , Law Office of 26 Genet Getachew, Brooklyn , NY

. 27 282 **FOR RESPONDENT:** Brian Boynton , Acting Assistant 1 Attorney General; Cindy S. 2 Ferrier , Assistant Director ; 3 Timothy G. Hayes , Senior 4 Litigation Counsel , Office of 5 Immigration Litigation , United 6 States Department of Justice, 7 Washington, DC. 8 9 U PON DUE CONSIDERATION of this petition for review of a 10
Board of Immigration Appeals (“BIA”) decision, it is hereby 11

ORDERED, ADJUDGED, AND DECREED that the petitio n for review 12

is GRANTED in part and DENIED in part

. 13

Petitioner Yumiko Dardanett Perez Nagahama , a native and 14

citizen of Peru , seeks review of a May 21 , 2020 , decision of 15
the BIA affirming a n August 8 , 2018 , decision of an 16

I mmigration Judge (“IJ”) d enying her application for asylum, 17
withholding of removal , and relief under the Convention 18
Against Torture (“CAT”). In re Yumiko Dardanett Perez 19
Nagahama , No. A 20 8 484 537 (B.I.A. May 2 1 , 2020 ), aff’g No. 20

A 208 484 537 (Immig. Ct. Hartford Aug. 8 , 2018 ). We assume 21
the parties’ familiarity with the underlying facts and 22
procedural his tory. 23

We have reviewed the IJ’s decision as modified by the 24

BIA. See Xue Hong Yang v. U.S. Dep’t of Just

. , 426 F.3d 520, 25
522 (2d Cir. 2005). 26

273 **I. Asylum**  1
We remand for the agency to conduct the required 2
factfinding and analysis regarding the reasonableness of 3
Perez Nagahama’s delay in filing her asylum claim following 4
her changed circumstances. A n asylum applicant must file an 5
asylum “ application

. . . wit hin 1 year after the date of

. 6

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

. 7
There is an exception for “ changed circumstances which 8
materially affect the applicant’s eligibility for asylum

. ” 9

I d. § 1158(a)(2)(D) . Where there is such a cha nge, the 10
applicant must file an application “within a reasonable 11
period given those ‘changed circumstances

. ’” 8 C.F.R. 12

§ 1208.4(a)(4)(ii). The IJ concluded and the BIA assumed 13
that Perez Nagahama’s circumstances changed materially when 14
she began living a s openly gay in April 2015. What is a 15

reasonable period for filing after a changed circumstance is 16

a fact

- specific inquiry: IJs should make specific “findings 17
of fact with respect to the particular circumstances involved 18
in the delay of the respondents’ a pplications” to determine 19
the reasonableness of the delay. Matter of T

- M

- H

- & S

- W

- C

- , 20

25 I. & N. Dec. 193, 195

– 96 (B.I.A. 2010)

. 21

224 Although o ur jurisdiction to review the agency’s denial 1
of an asylum claim as time barred is limited, Perez Nagahama 2
has raised a reviewable question of law that the agency failed 3
to apply the proper standard because it did not consider her 4
specific circumstances before concluding that her delay was 5

unre asonable. See 8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D) ; 6

Barco

- Sandoval v. Gonzales , 516 F.3d 35, 39 (2d Cir. 2008) 7
(holding that question of law arises if agency applies “ a 8
legally erroneous standard ” ). We review questions of law de 9

novo. Pierre v. Holder , 588 F.3d 767, 772 (2d Cir. 2009). 10

T he agency did not conduct the required factfinding and 11
analysis. The IJ found that Perez Nagahama’s asylum 12
application was untimely because she did not apply within one 13
year of beginning to live as openly gay. The IJ did not make 14
the required determination as to whether Perez Nagahama’s 15
particular circumstances rendered the delay reasonable

. See 16

T

- M

- H

- & S

- W

- C

- , 25 I. & N. Dec. at 195

– 96 (remanding for IJ 17

to consider whether 9

- month to one

- year delay in filing after 18
the birth of the child that prompted fear of persecution under 19
family planning policy was reasonable)

. The BIA affirmed the 20
IJ’s decision, stating that “ upon consideration of 21
respondent’s change in lifestyle, the only changed 225 circumstance material to her asylum application, we determine 1
that the respondent has not presented a ‘rare case[] in which 2
a delay of one year or more may be justified because of 3
particular circumstances.’” A.R. 4. 4

Matter of T

- M

- H

- & S

- W

- C

- concluded that there is not 5
“an automatic one[

- ]year extension ” following a change in 6

circumstance but acknowledge d that there may be rare cases 7

“ in which a delay of 1

- year or more may be justified

. ” 25 I. 8

& N. Dec. at 195 . Accordingly, the BIA remanded for the IJ 9
to make specific findings whether a delay of 9 months to a 10
year following the changed circumstance w as reasonable. Id. 11

at 195

– 96. The BIA directed the IJ to make specific “findings 12
of fact with respect to the particular circumstances involved 13
in the delay

. ” Id. at 195. 14

Here, the IJ did not make findings of facts regarding 15
the reasonableness of the delay in light of the attendant 16

circumstances

. T he BIA should have remanded to the IJ to 17

consider whether the delay was reasonable. See 8 C.F.R. § 18
1003.1(d)(3)(iv) ; see also Lopez

- Garcia v. Barr , 838 F. App'x 19
573, 576 (2d Cir. 2020) (granting petition and remanding where 20

BIA determined , in the first instance, the reasonableness of 21
a delay following changed circumstances). Instead , t he BIA 226 made its own factual determinations that Perez Nagahama 1
beginning to live as openly gay did not make her delay 2
reasonable and that the other facts she pointed to were not 3
related to this underlying changed circumstance. Compounding 4

this issue , the BIA gave no reasoning for its conclusion that 5

the relevant circumstance made her delay 6

unreasonable. S ee Poradisova v. Gonzales , 420 F.3d 70, 77 (2d 7
Cir. 2005) (“We require a certain minimum level of analysis 8
from the IJ and BIA ... if judicial review is to be 9
meaningful.”). Therefore remand is required as to Perez 10
Nagahama’s asylum claim. 11

**II. Withholding of Removal and CA**  **T** 12
We deny the petition as to withholding of removal and 13

CAT relief. Perez Nagahama asserted a fear of persecution 14
and torture in Peru as a gay woman. A n applicant for 15
withholding of removal and CAT relief has the burden to 16

es tablish that she will “more likely than not” suffer harm 17
rising to the level of persecution or torture. 8 C.F.R. 18

§ 1208.16(b)(2), (c)(2). The BIA has defined persecution as 19
a “threat to the life or freedom of, or the infliction of 20
suffering or harm upon, those who differ in a way regarded as 21

offensive.” Matter of Acosta , 19 I. & N. Dec. 211, 222 227 (B.I.A. 1985), overruled in part on other grounds, INS v. 1

Cardoza

- Fonseca , 480 U.S. 421 (1987). To justify relief , the 2
persecution must be sufficiently severe, rising above “mere 3

harassment.” Ivanishvili v. U.S. Dep’t of Justice , 433 F.3d 4
332, 341 (2d Cir. 2006). “Torture is defined as any act by 5
which severe pain or suffering, whether physical or mental, 6
is intentionally inflicted on a person . . . at the 7

inst igation of or with the consent or acquiescence of a public 8
official or other person acting in an official capacity.” 9

8 C.F.R. § 1208.18(a)(1). 10
Perez Nagahama argues that her country conditions 11

evidence demonstrates that she will more likely than not be 12
persecuted or tortured. We review the agency ’s factual 13
findings for substantial evidence and its conclusions of law 14
and application of law to fact s de novo. See Scarlett v. 15

Barr , 957 F.3d 316, 326 (2d C ir. 2020). We find no error in 16
the agency’s conclusion that Perez Nagahama failed to 17
establish that she would more likely than not suffer harm 18
rising to the level of persecution or torture

. T he agency 19
reasonably concluded that, although Perez Nagahama co uld face 20
hardship in Peru because of her sexual orientation, t he 21
evidence did not establish that she would “more likely than 228 not” be persecuted or tortured on the basis of her sexual 1

orientation

. See 8 C.F.R. § § 1208.16(b)(2), (c)(2), 2

1208.18(a)(1); Ivanishvili , 433 F.3d at 341. 3
For the foregoing reasons, the petition for review is 4
GRANTED in part and REMANDED for further consideration of the 5
asylum claim and DENIED in remaining part as to withholding 6

of removal and CAT relief

. All pending motions and 7
applications are DENIED and stays VACATED. 8

FOR THE COURT: 9 Catherine O ’Hagan Wolfe , 10 Clerk of Court 11