Khozhaynova v. Holder, No. 09-4327 (6th Cir. Apr. 20, 2011) (published)

The court affirmed the denial of this Russian asylum claim. 

The noncitizen filed her asylum application beyond the expiration of the one-year deadline.  She claimed extraordinary circumstances excused the untimely filing.  To get around the jurisdictional bar of 208(a)(3), she argued that the case presented a mixed question of law and fact, as the court has jurisdiction to consider constitutional claims and matters of statutory construction. 

The 9th and 2nd circuits have held that these mixed questions of law and fact are reviewable in this context.  The court declined to follow those decisions because it felt constrained by its prior precedent decision Almuhtaseb v. Gonzales, 453 F.3d 743 (6th Cir. 2006).  The court found that because the question is predominantly factual, it could not review the timeliness determination.

Turning to the merits of the withholding claim, the court affirmed the BIA's decision.  It upheld the adverse credibility finding, addressing several of the grounds.

The court also found that the harm was not connected to a protected ground, in that extortionate demands by thugs do not put the victim in a protected social group.  Business owners who refuse to give in to extortion do not form such a group. 

The court also refused to find that the harm was on account of her political opinion.  One wonders whether the analysis would have been different had the court had the benefit of Matter of N-M-, 25 I&N Dec. 526 (BIA 2011) (setting out the framework to determining when opposition to state corruption constitutes a political opinion or gives rise to an imputed political opinion claim).