Christine Aantje Trees Lumeno v. ERIC H. HOLDER, Jr., Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHRISTINE AANTJE TREES LUMENO,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 12-73724
Agency No. A000-089-875
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted October 8, 2014
Portland, Oregon
Before: KOZINSKI, FISHER and DAVIS, ** Circuit Judges.
Christine Lumeno petitions this court for review of the Board of
Immigration Appeals’ (BIA) denial of her asylum application as time-barred. We
have jurisdiction under 8 U.S.C. § 1252, and we deny the petition in part and
dismiss in part.
FILED
JAN 28 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Andre M. Davis, Senior Circuit Judge for the U.S. Court
of Appeals for the Fourth Circuit, sitting by designation.

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1. Substantial evidence supports the BIA’s conclusion that the
circumstances related to Lumeno’s failure to file her asylum application within a
reasonable period after the BIA’s dismissal of her husband Feng Chen’s appeal
were intentionally created by Lumeno through her own inaction. See 8 C.F.R. §
1208.4(a)(5).
The relevant period of time is between August 2006, the date of the BIA’s
dismissal of Chen’s appeal and the final denial of Lumeno’s derivative asylum
application, and February 2008, when Lumeno was placed into removal
proceedings and thus bound by the immigration court’s filing deadlines. See 8
C.F.R. § 208.2(b). Lumeno testified that her husband’s attorney estimated in
August 2005 that the appeal process could take “18-24 months or longer,” but she
alleges she did not learn about the BIA’s denial until her husband was arrested in
February 2008, nearly 30 months after Chen’s appeal was filed. Chen had made
“many” unsuccessful attempts to contact his attorney to learn about the status of
his appeal during its pendency. Lumeno testified that Chen’s last attempt was prior
to September 2007. Chen again received no response from his attorney and, in
Lumeno’s words, “move[d] on to his life.” Even then, Lumeno took no steps to
file her own asylum application until Chen was arrested four months later. The
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BIA did not err in concluding that Lumeno failed to demonstrate sufficient
diligence to overcome her untimely filing.
2. We dismiss Lumeno’s claim that she should have received notice of the
denial of her husband’s asylum application as a matter of due process because she
failed to raise it before the BIA. See Sola v. Holder, 720 F.3d 1134, 1135 (9th Cir.
2013).
PETITION FOR REVIEW DENIED IN PART, DISMISSED IN PART.
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