Khun Seng Mong v. Mukasey

MEMORANDUM ***

Khun Seng Mong (“Mong”), a Burmese national and member of the Shan ethnic minority group, petitions for review of the Board of Immigration Appeals’ (“BIA”) order adopting and affirming the Immigration Judge’s (“IJ”) decision denying his application for asylum and withholding of removal. The IJ denied Mong relief, finding that his application for asylum was barred by the one-year filing requirement, and that his testimony with respect to all of his claims lacked credibility. We have jurisdiction under 8 U.S.C. § 1252 . Notwithstanding any other statutory jurisdictional bar, we also have jurisdiction under 8 U.S.C. § 1252 (a)(2)(D) to review questions of law, including the application of law to undisputed facts. Ramadan v. Gonzales, 479 F.3d 646, 654 (9th Cir.2007). We grant the petition in part and remand in part.

With respect to whether Mong’s application for asylum is time-barred— whether Mong filed his application for asylum within one year of his “last arrival” in the United States—we remand the issue to the BIA because the BIA has never addressed the meaning of “arrival” within 8 U.S.C. § 1158 (a)(2)(B) or “last arrival” within 8 C.F.R. § 1208.4 (a)(2)(ii).…