Husyev v. Mukasey ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HENNADIY LEONIDOVICH HUSYEV; 
TETYANA HRYHORIVNA HUSYEVA, No. 05-75177
Petitioners, Agency Nos.
v.  A79-290-596
MICHAEL B. MUKASEY, Attorney A79-290-597
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
December 5, 2007—San Francisco, California
Filed June 16, 2008
Before: Betty B. Fletcher, William C. Canby, Jr., and
Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge Canby
6891
6894 HUSYEV v. MUKASEY
COUNSEL
Stacy Tolchin, Van Der Hout, Brigagliano & Nightingale,
LLP, Los Angeles, California, for the petitioners.
Stephen J. Flynn (briefs), Colette J. Winston (oral argument),
United States Department of Justice, Civil Division, Office of
Immigration Litigation, Washington, DC, for the respondent.
OPINION
CANBY, Circuit Judge:
Hennadiy Leonidovich Husyev, a native and ethnic Russian
and a citizen of Ukraine, petitions for review of final orders
HUSYEV v. MUKASEY 6895
of the Board of Immigration Appeals (“BIA”) denying relief
from removal. Husyev originally entered the United States on
a tourist visa. He overstayed his visa and, 364 days after the
expiration of his temporary nonimmigrant status, applied for
asylum. The Immigration Judge (“IJ”) and the BIA denied
Husyev’s application as untimely. They held that, although
Husyev’s legal status as a tourist could constitute an “extraor-
dinary circumstance” justifying his failure to file an asylum
application within one year of arrival, see 8 U.S.C.
§ 1158(a)(2)(D), he had failed to file his asylum application
within a “reasonable period” after expiration of his legal sta-
tus, see 8 C.F.R. § 1208.4(a)(5)(iv). We conclude, as a matter
of first impression in this circuit, that we have jurisdiction
under the REAL ID Act, Pub. L. No. 109-13, Div. B (2005),
to review this determination. Exercising such review, we
affirm the decision of the BIA.
During his removal proceedings, Husyev also sought with-
holding of removal and relief under the Convention Against
Torture, which the IJ and the BIA denied. We also affirm
these rulings of the BIA, and accordingly deny Husyev’s peti-
tion for review.1
BACKGROUND AND PROCEDURAL HISTORY
I. Husyev’s Asylum Application
Husyev was born in Russia but moved to Ukraine with his
family when he was a child in the 1950s. He later became an
accomplished pole vaulter and represented the Soviet Union
1
After the BIA dismissed his appeal, Husyev filed a motion to reopen
the asylum proceedings on behalf of himself and his spouse, claiming that
prior counsel had provided ineffective assistance. The BIA denied the
motion, and the Husyevs petitioned for review of that decision as well.
The two petitions for review have been consolidated. We address the
BIA’s denial of the motion to reopen in a separate, unpublished memoran-
dum disposition in No. 06-71826, which is filed contemporaneously with
this opinion.
6896 HUSYEV v. MUKASEY
in the Olympic Games in 1972. He subsequently became a
physician specializing in sports medicine and worked at the
College of Physical Education of West Ukraine. He is a
Ukrainian citizen. His spouse, Tetyana Hryhorivna Husyeva
(Husyeva), is an ethnic Russian, but a native and citizen of
Ukraine.
The Husyevs entered the United States on November 20,
1999, on tourist visas that authorized them to remain in the
country until May 19, 2000. They remained in the United
States after expiration of their visas. Husyev filed an applica-
tion for asylum on May 18, 2001. In his asylum application,
Husyev stated that he was requesting asylum because of “past
persecution based on [his] Russian [e]thnicity” and his “well
founded fear of persecution” if forced to return to Ukraine.
Husyev stated that, as ethnic Russians, he and his family
“were part of an ethnic minority living among a majority of
ethnic Ukrainians” and had been “harassed and mistreated” by
members of the UNA-UNSO party, a Ukrainian nationalist
group.
Husyev submitted a declaration in which he described in
detail several instances in which he and his immediate family
suffered verbal and physical abuse at the hand of members of
Ukranian nationalist groups. He also stated that both he and
his wife lost their jobs on account of their Russian heritage.
In his application, Husyev did not mention that he participated
in any form of political advocacy or public activity that would
cause nationalist groups to target him.
Husyev was interviewed by an asylum officer in the pres-
ence of his then attorney, Larry James. According to the asy-
lum officer’s notes, Husyev admitted that he did not apply for
asylum within one year of his arrival, but asserted that he had
not done so because he had been told that only Jews from
Ukraine were receiving asylum, not Russians. The officer
concluded that “there were extraordinary circumstances
excepting [Husyev] from the one-year filing deadline”
HUSYEV v. MUKASEY 6897
because he initially had lawful status, but also found that
Husyev did not file his application within “a reasonable
period of time” after his lawful status ended.
II. The Removal Proceedings
In removal proceedings before the IJ, Husyev argued a new
set of extraordinary circumstances—namely, the fraud and
malfeasance of a paralegal the Husyevs had hired—to excuse
his noncompliance with the one-year bar. According to his
brief, “Mr. Husyev and his family became victims of a shame-
less swindler” named Boris Kaplan, who took their money
and then failed to file their asylum application.
Along with the brief, new counsel retained by the Husyevs
prior to the commencement of their removal proceedings,
Christopher Kerosky, submitted affidavits from friends and
family asserting that, because of their Russian ethnicity, the
Husyevs had experienced great difficulties while living in
Ukraine and that they will face “persecution, unfairness, prej-
udice, and discrimination” if forced to return to Ukraine. He
also submitted photos and press cuttings regarding his role as
an Olympic athlete; a copy of a letter dated September 15,
2003 addressed to Boris Kaplan informing Kaplan that the
Husyevs intended to file a complaint against him; a copy of
a request for investigation of Boris Kaplan submitted to the
State Bar of Illinois; and medical records indicating that
Husyev displayed traumatic injuries in January 1999 and
March 1994.
At his first merits hearing before the IJ, Husyev testified to
the discrimination he experienced at work and the attacks
described in his initial application. Husyev then testified for
the first time that, when he was in Ukraine, he had made
“public appearances and speeches for human rights issues.”
He contended that in approximately fifteen speeches, he
expressed the view that “all nations, Russians, Ukrainians,
Jews and whatever nations there were, had to co-exist in a
6898 HUSYEV v. MUKASEY
new country, in Ukraine,” but stopped giving speeches after
he was beaten at the end of one of the speeches.
After the hearing was recessed, Husyev submitted a new
declaration, in which he detailed his dealings with the parale-
gal, Boris Kaplan, and described the political speeches he
gave in Ukraine. In his declaration, Husyev stated that he
“started speaking out against nationalism” after the fall of the
Soviet Union and that “[f]rom August 1991 until January
1992, [he] gave about 15 such political speeches.” At the
speeches, “members of UNA-UNSO tried to physically block
[his] way to the platform” and “tried to muffle [his] voice.”
After one of these speeches, he was “beaten by a group of
thugs associated with this ultra-nationalist organization.”
When Husyev’s hearing continued, he testified further to
his dealings with Kaplan. On cross-examination, he acknowl-
edged that he did not mention Kaplan in his asylum interview.
He denied being asked by the asylum officer why he did not
file within the one-year deadline and claimed that his attorney
at the time had told him that his application was not late, lead-
ing him to believe that the information about Kaplan was
irrelevant.
In an oral decision, the IJ examined Husyev’s testimony
about Kaplan and compared it to his statements to the asylum
officer, concluding that “[q]uite clearly, the respondent has
presented two dramatically different versions of events.” The
IJ decided that he was “constrained to find that respondent has
not timely filed his application” because “respondent pro-
vided no plausible or believable explanation, when asked at
the Asylum Office why he had not filed sooner, for his failure
to mention Mr. Kaplan and Mr. Kaplan’s malfeasance.” He
also noted the lack of corroboration of any of the alleged
activities of Mr. Kaplan. The IJ then ruled that Husyev had
failed to demonstrate by clear and convincing evidence that
he had filed within a reasonable time after the expiration of
HUSYEV v. MUKASEY 6899
his legal status. He accordingly denied Husyev’s application
for asylum as untimely.
Turning to Husyev’s application for withholding of
removal and relief under the Convention Against Torture
(CAT), the IJ noted that in his initial declaration and again
before the asylum officer, Husyev “failed to mention that he
had given some fifteen public speeches attacking Ukrainian
Nationalists and that it was because of these speeches, at least
in part, that he became well known and a target of the Ukrai-
nian Nationalists.” The IJ also emphasized that he would have
expected that Husyev could produce documentary evidence of
his fifteen public speeches, and “the failure to corroborate his
claim . . . undermine[d] [Husyev’s] credibility.” The IJ went
on to note that Husyev’s version of the story was also implau-
sible in light of the documentary evidence presented in the
record, including evidence of country conditions. He therefore
concluded that Husyev’s testimony was not credible. As a
consequence, Husyev had failed to establish past persecution
or the likelihood of future persecution. The IJ also found that,
in the alternative, “the respondent cannot show any realistic
possibility that he would be persecuted in the Ukraine and
certainly no possibility that he would be persecuted country
wide in Ukraine.” The IJ found that Husyev “could relocate
to another part of the Ukraine” where a majority of the popu-
lation identifies itself as ethnically Russian. The IJ accord-
ingly denied withholding of removal. He then went on to deny
relief under the Convention Against Torture.
Husyev appealed to the BIA. The BIA dismissed the
appeal, adopting and affirming the decision of the IJ. This
petition for review followed.
DISCUSSION
We review de novo questions of law, Monjaraz-Munoz v.
INS, 327 F.3d 892, 895 (9th Cir. 2003). We do not accord
Chevron deference to the BIA’s interpretation of the govern-
6900 HUSYEV v. MUKASEY
ing statutes and regulations because it is in an “unpublished
disposition . . . issued by a single member of the BIA.”
Ortega-Cervantes v. Gonzales, 501 F.3d 1111, 1113 (9th Cir.
2007); cf. Chevron USA, Inc. v. NRDC, 467 U.S. 837 (1984)
(explaining that courts grant substantial deference to an agen-
cy’s reasonable interpretation of an ambiguous statute, when
a statute falls within the subject-matter jurisdiction of a fed-
eral agency.). We review all factual findings for substantial
evidence. Monjaraz-Munoz, 327 F.3d at 892.
In upholding the IJ’s denial of Husyev’s applications for
asylum, withholding of removal and relief under the Conven-
tion Against Torture, the BIA “adopt[ed] and affirm[ed] the
decision of the Immigration Judge,” citing Matter of Burbano,
20 I. & N. Dec. 872 (BIA 1994). “[W]here the BIA cites its
decision in Burbano and does not express disagreement with
any part of the IJ’s decision, the BIA adopts the IJ’s decision
in its entirety.” Abebe v. Gonzales, 432 F.3d 1037, 1040 (9th
Cir. 2005) (en banc). We therefore review the decision of the
IJ, as well as any additional reasoning offered by the BIA.
I. Asylum
A. Jurisdiction to Review “Extraordinary
Circumstances”
The Illegal Immigration Reform and Immigrant Responsi-
bility Act of 1996 (IIRIRA), ordinarily requires an asylum
application to be filed “within 1 year after the date of the
alien’s arrival in the United States.” 8 U.S.C. § 1158(a)(2)(B).
An exception, however, permits an application to be consid-
ered if the alien “demonstrates to the satisfaction of the Attor-
ney General . . . extraordinary circumstances relating to the
delay in filing the application” within the required one year.
8 U.S.C. § 1158(a)(2)(D). A regulation sets forth examples of
extraordinary circumstances, including the one under which
Husyev attempted to qualify:
HUSYEV v. MUKASEY 6901
The applicant maintained . . . lawful immigrant or
nonimmigrant status . . . until a reasonable period
before the filing of the asylum application.
8 C.F.R. § 1208.4(5)(iv). The IJ and the BIA ruled that
Husyev had failed to meet this requirement because he waited
364 days—more than a reasonable period— after expiration
of his legal status before filing his asylum application.
[1] A threshold question is whether we have jurisdiction to
review this determination. There are two potential obstacles to
our jurisdiction. The first is 8 U.S.C. § 1158(a)(3), which pro-
vides that “[n]o court shall have jurisdiction to review any
determination of the Attorney General” regarding the one-
year bar or its exceptions for changed or extraordinary cir-
cumstances. Standing alone, that provision clearly would pre-
clude our jurisdiction. In 2005, however, Congress enacted
the REAL ID Act, which dramatically altered the effect of
statutes stripping us of jurisdiction to review BIA decisions.
Pub. L. No. 109-13, Div. B, § 106(a)(1)(A)(iii), 119 Stat. 231,
310 (May 11, 2005) (codified at 8 U.S.C. § 1252(a)(2)(D)).
Under the REAL ID Act, “[n]othing in . . . any . . . provision
of this chapter . . . which limits or eliminates juridical review,
shall be construed as precluding review of constitutional
claims or questions of law.” 8 U.S.C. § 1252(a)(2)(D). The
jurisdictional prohibition of § 1158(a)(3) is accordingly over-
ridden by the REAL ID Act for questions of law and constitu-
tional claims. We so held in Ramadan v. Gonzales, 479 F.3d
646, 650 (9th Cir. 2007) (per curiam).
[2] The crucial question, therefore, is whether Husyev has
presented a question of law in his claim to “extraordinary cir-
cumstances” arising from a legal status maintained until a
“reasonable period” before the filing of an asylum applica-
tion. We conclude that his claim does present a question of
law. Here, too, we rely on Ramadan, which held that a deter-
mination of the different but analogous issue of “changed cir-
cumstances” presented a question of law when it required the
6902 HUSYEV v. MUKASEY
application of statutes and regulations to undisputed facts. Id.
at 656-57. The issue in Ramadan arose from the same statu-
tory clause as the issue in our case: that portion of
§ 1158(a)(2)(D) that permits late applications for asylum to be
considered upon a demonstration of “either the existence of
changed circumstances which materially affect the applicant’s
eligibility for asylum or extraordinary circumstances relating
to the delay in filing an application. . . .” Ramadan held that
“our jurisdiction over ‘questions of law’ as defined in the Real
ID Act includes not only ‘pure’ issues of statutory-
interpretation, but also application of law to undisputed facts,
sometimes referred to as mixed questions of law and fact.” Id.
at 648. It therefore concluded that the “changed circum-
stances” ruling, which clearly presented a mixed question of
law and fact, was reviewable pursuant to Section 106 of the
REAL ID Act. Id.
[3] The parallel of Ramadan to our case is apparent. Mixed
questions of law and fact are those “in which the historical
facts are admitted or established, the rule of law is undisputed,
and the issue is whether the facts satisfy the statutory stan-
dard, or to put it another way, whether the rule of law as
applied to the established facts is or is not violated.” Pullman-
Standard v. Swint, 456 U.S. 273, 289 n.19 (1982). The facts
underlying Husyev’s application—the dates of his arrival, the
expiration of his legal status, and his application for asylum—
are not in dispute. The issue is how the statute and regulation
apply to those facts. We conclude, therefore, that this case,
like Ramadan, presents a question of law not subject to the
jurisdictional restriction of § 1158(a)(3) on review of timeli-
ness rulings in asylum cases.
[4] The second potential obstacle to our jurisdiction is
treated in divergent ways in our precedents, but is equally sur-
mountable. It is the restriction on jurisdiction to review dis-
cretionary determinations, which provides, with certain
exceptions, that
HUSYEV v. MUKASEY 6903
no court shall have jurisdiction to review . . . any . . .
decision or action of the Attorney General or the
Secretary of Homeland Security the authority for
which is specified under this subchapter to be in the
discretion of the Attorney General or the Secretary
of Homeland Security . . . .
8 U.S.C. § 1252(a)(2)(B). One of the express exceptions to
this prohibition, however, is the provision of the REAL ID
Act preserving our jurisdiction to review constitutional claims
or questions of law, § 1252(a)(2)(D). Even in the absence of
such an exception in subsection (B), the terms of
§ 1252(a)(2)(D) would preserve our jurisdiction over ques-
tions of law because it provides that “[n]othing in subpara-
graph (B) [denying jurisdiction over discretionary decisions]
. . . , or in any other provision of this chapter . . . which limits
or eliminates judicial review, shall be construed as precluding
review of constitutional claims or questions of law raised
upon a petition for review. . . .” Id. Thus, we held in Afridi
v. Gonzales, that “[t]he plain language of the REAL ID Act
grants jurisdiction to appellate courts to review questions of
law presented in petitions for review of final orders of
removal, even those pertaining to otherwise discretionary
determinations.”). 442 F.3d 1212, 1218 (9th Cir. 2006).
[5] The clear text of § 1252(a)(2)(D) and our precedent in
Afridi accordingly suggest that it makes no difference whether
a determination of “extraordinary circumstances” is within the
discretion of the Attorney General, because we have con-
cluded that it presents a question of law. The REAL ID Act
restores our jurisdiction to address such a question of law
despite any statutory restrictions on our jurisdiction over dis-
cretionary decisions.
A contrary conclusion is reached, however, in Ramadan,
which stated that “Section 106 [of the REAL ID Act] does not
restore jurisdiction over discretionary determinations.” Rama-
dan, 479 F.3d at 654. In accord with that statement, Ramadan
6904 HUSYEV v. MUKASEY
examined whether the question of “changed circumstances,”
which it had determined to present a question of law, was
committed to the discretion of the Attorney General. See id.
at 655-56. Thus Ramadan points in a different direction from
the text of the REAL ID Act and Afridi, and suggests that we
must address whether the determination of “extraordinary cir-
cumstances” is a discretionary question even though we have
determined that it presents a question of law.2
We need not resolve this question, however, to reach a
result in our case. It makes no difference whether or not we
are required to satisfy ourselves that a determination of “ex-
traordinary circumstances” is not a discretionary decision. If
we are not required to do so, then we have jurisdiction to
decide “extraordinary circumstances” as a question of law. If
we are required to satisfy ourselves that the issue is not a dis-
cretionary one, Ramadan itself supplies the authority for rul-
ing that the issue is not discretionary. In its examination of the
parallel issue of “changed circumstances,” Ramadan firmly
rejects the contention that the issue is a discretionary question.
See id. at 654-56. This reasoning of Ramadan is equally appli-
cable to the determination of “extraordinary circumstances” in
our case. The asylum statute provides that an alien seeking to
file an asylum application more than one year after arrival
must demonstrate either “changed circumstances” (as in Ram-
adan) or “extraordinary circumstances” (is in our case) “to the
satisfaction of the Attorney General.” 8 U.S.C.
§ 1158(a)(2)(D). Ramadan made clear that the latter phrase
“is a specification of who is to make the decision, rather than
a characterization of that decision itself.” Ramadan, 479 F.3d
2We are aware of decisions from other circuits holding that discretion-
ary decisions in general were not intended by Congress to be made
reviewable under the REAL ID Act. See, e.g., Chen v. U.S. Dept. of Jus-
tice, 434 F.3d 144, 151-55 (2d Cir. 2006); Grass v. Gonzales, 418 F.3d
876, 878-79 (8th Cir. 2005). These decisions support the view of Rama-
dan, but are in conflict with Afridi and seem to accord no effect to that part
of the REAL ID Act that provides for jurisdiction over questions of law
notwithstanding the prohibition on review of discretionary determinations.
HUSYEV v. MUKASEY 6905
at 655. Because Congress ordinarily is very explicit when it
provides for decisions “in the discretion” of the Attorney
General, Ramadan concluded that no commitment to discre-
tion had been made in § 1158(a)(2)(D). See id. This reasoning
of Ramadan necessarily applies to both “changed circum-
stances” and “extraordinary circumstances.” In addition, we
can find no difference in the nature of the two issues that
would require or permit different results in Ramadan and our
case.
The government argues, however, that the nature of the
determination of “extraordinary circumstances” is inherently
so lacking in measurable standards that it presents one of the
“rare instances where ‘statutes are drawn in such broad terms
that in a given case there is no law to apply.’ ” Heckler v.
Chaney, 470 U.S. 821, 830 (1985) (quoting Citizens to Pre-
serve Overton Park v. Volpe, 401 U.S. 402, 410 (1971), over-
ruled on other grounds by Califano v. Sanders, 430 U.S. 99,
105 (1977)). If there is no law to apply, the issue presumably
would not present a “question of law” within the meaning of
the REAL ID Act. The government relies on cases holding
unreviewable determinations such as “exceptional and
extremely unusual hardship,” Romero-Torres v. Ashcroft, 327
F.3d 887, 891 (9th Cir. 2003), and “extreme cruelty,” Perales-
Cumpean v. Gonzales, 429 F.3d 977, 981-84 (10th Cir. 2005).
We reject the government’s contention. The term “extraor-
dinary circumstances” is not rendered standardless by the fact
that Congress left the Attorney General and other agencies the
authority to refine the contours of the provision. Indeed, pro-
viding greater specificity to the “extraordinary circumstances”
standard was evidently among the goals of the regulatory
efforts of the Immigration and Naturalization Service (“INS”)
and Executive Office for Immigration Review (“EOIR”),
which promulgated interim regulations governing asylum pro-
cedures in 1997 and permanent ones in 2000, 65 Fed. Reg.
76121-01 (Dec. 6, 2000). The final rules provided that the
applicant bears the burden of showing “that the delay was rea-
6906 HUSYEV v. MUKASEY
sonable under the circumstances.” 8 C.F.R. § 208.4(a)(5). The
new regulations also amended the interim provision on “Tem-
porary Protected Status” to include as a possible extraordinary
circumstance “lawful immigrant or nonimmigrant status.” 8
C.F.R. § 1208.4(a)(5)(iv). The agency explained this amend-
ment by stating in the Preamble to the permanent regulations
that “lawful . . . status” was added to the list “because there
are sound policy reasons to permit persons who [a]re in a
valid immigrant or nonimmigrant status, or [a]re given parole,
to apply for asylum within a reasonable time after termination
of parole or immigration status.” 65 Fed. Reg. 76121-01 at
76123. Nonetheless, the
Department would expect a person in that situation
to apply for asylum . . . within a very short period
of time after the expiration of her status. . . . Gener-
ally, the Department expects an asylum-seeker to
apply as soon as possible after expiration of his or
her valid status . . . . Clearly, waiting six months or
longer after expiration or termination of status would
not be considered reasonable.
Id. at 76123-24.
[6] Contrary to the government’s suggestion in this appeal,
we find that these regulations provide standards sufficient to
permit meaningful judicial review. First, the regulations set
out a non-exhaustive list of six potentially qualifying “ex-
traordinary circumstances.” Clearly, this list provides a partial
adjudicative standard in and of itself. See 8 C.F.R.
§ 1208.4(a)(5)(i)-(vi). Second, the agency has taken pains to
articulate the “reasonable period” standard that applies to peti-
tioners whose temporary nonimmigrant status has expired.
Indeed, asylum seekers in this predicament are cautioned that
“waiting six months or longer after expiration or termination
of status would not be considered reasonable.” 65 Fed. Reg.
76121-01 at 76123. In light of this comprehensive regulatory
scheme, we conclude that the agency has established a “mean-
HUSYEV v. MUKASEY 6907
ingful standard” by which we may review the BIA’s “extraor-
dinary circumstances” determinations, including review of the
“reasonable period” prong in particular. See Heckler, 470 U.S.
at 830. Accordingly, neither the “extraordinary circum-
stances” inquiry nor its “reasonable period” corollary are dis-
cretionary agency determinations that we are precluded from
reviewing because there can be no law to apply.
[7] We conclude, therefore, that we have jurisdiction under
the REAL ID Act to review Husyev’s claim of extraordinary
circumstances notwithstanding the jurisdiction-stripping pro-
visions of §§ 1158(a)(3) and 1252(a)(2)(B)(ii) or any other
possible limitation on review of discretionary decisions.
B. The IJ’s and BIA’s “Extraordinary
Circumstances” Ruling
[8] Turning to the merits of Husyev’s petition, we conclude
that, in a case such as this where there is no explanation for
the petitioner’s delay,3 Husyev’s 364-day wait after his lawful
nonimmigrant status expired is not a reasonable period. As
discussed above, § 1158(a)(2)(D) clearly provides that an
alien must file his application for asylum within one year of
his arrival in the United States. We reject Husyev’s argument
that he must be given one year after the expiration of his legal
status. The extraordinary circumstances provision is not
intended to “toll” the general one-year limitation. Rather it is
written in the language of an exception, excepting aliens from
the one-year requirement if they can show an extraordinary
circumstance directly “related” to the delay. Furthermore, the
term “reasonable period” used in both the interim and perma-
nent regulations suggests an amount of time that is to be
3
At this stage, Husyev does not challenge the IJ’s and BIA’s adverse
credibility determination regarding the fraud Kaplan allegedly perpetrated
at his expense. As a result, the only fact that Husyev has established with
regard to the timeliness of his application is that it was filed 364 days after
his lawful status expired.
6908 HUSYEV v. MUKASEY
determined on the basis of all the factual circumstances of the
case. In the absence of any special considerations, the six
months period suggested in the preamble to the regulations is
not an unreasonable presumptive deadline.4 Here, Husyev has
not established any facts that would explain his failure to file
within that period of time. We have no difficulty finding per-
suasive the view of the IJ and BIA that 364 days is not a rea-
sonable period after the end of lawful status in the absence of
any established explanation for Husyev’s failure to file ear-
lier.
[9] Finally, we reject Husyev’s argument that he did not
receive adequate notice of the deadlines for filing his asylum
application.5 It is of course true that aliens in immigration pro-
ceedings are entitled to due process under the Fifth Amend-
ment, see Reno v. Flores, 507 U.S. 292, 306 (1993), and that
they are denied due process where they are not given adequate
notice of procedures and standards that will be applied to their
claims for relief. See, e.g., Martinez-de Bojorquez v. Ashcroft,
365 F.3d 800, 804 (9th Cir. 2004) (failure to notify petitioner
that leaving the country would lead to forfeiture of her appeal
to the BIA is a violation of due process). In this case, how-
ever, Husyev received adequate notice of the time limitations
governing his asylum application. When Husyev arrived in
the United States in November 1999, the regulations on
4
In his oral decision, the IJ noted that Husyev must demonstrate that “he
has filed within a reasonable time after falling out of status” and that he
had failed to do so. We do not read the IJ’s decision as inferring from the
Preamble to the 2000 regulations a flat six-month limitation running from
the expiration of an alien’s temporary nonimmigrant status. Although we
conclude that six months may serve in default as a reasonable presumptive
deadline, we do not foreclose other reasonable periods, and exceptions
thereto, that may be set by the agency, nor do we preclude individualized
determinations of reasonableness of delay.
5
We have jurisdiction to review this argument because it arises under
the Due Process Clause of the Fifth Amendment, and the REAL ID Act
restores our jurisdiction over “constitutional claims.” 8 U.S.C.
§ 1252(a)(2)(D).
HUSYEV v. MUKASEY 6909
extraordinary circumstances did not indicate that temporary
nonimmigrant status might qualify as an extraordinary cir-
cumstance. See 62 Fed. Reg. 10312-01 at 10339. Thus, at the
time of his arrival, Husyev faced a firm one-year deadline, of
which he undisputably had adequate notice. He was already
in violation of that deadline and had overstayed his visa by
more than six months when the permanent regulations were
issued, permitting delay because of legal status but suggesting
that a reasonable period thereafter for filing ordinarily would
not exceed six months. Husyev waited an additional five
months after the reasonable presumptive deadline to file. We
conclude that, in these circumstances, rejection of his applica-
tion as untimely did not violate Husyev’s right to due process.
II. Withholding of Removal
[10] We next consider whether substantial evidence sup-
ports the IJ’s denial of Husyev’s petition for withholding of
removal. Under the substantial evidence standard, we must
uphold the IJ’s decision unless the evidence compels a rea-
sonable factfinder to reach a contrary result. Singh-Kaur v.
INS, 183 F.3d 1147, 1149-50 (9th Cir. 1999). “To qualify for
withholding of removal, [Husyev] must demonstrate that it is
more likely than not that he would be subject to persecution
on one of the [statutorily] specified grounds.” Al-Harbi v.
INS, 242 F.3d 882, 888 (9th Cir. 2001) (internal quotation
marks and citation omitted); see also 8 C.F.R.
§ 1208.16(b)(2).
The IJ concluded that Husyev’s testimony was not credible
primarily because of a significant “inconsistency” in his ver-
sion of the story over time. The inconsistency—or, to be more
accurate, the omission—identified by the IJ consists of
Husyev’s failure to mention in his asylum application and
interview the fifteen speeches that he gave in Ukraine in the
early 1990s to denounce the persecution of ethnic minorities
at the hands of Ukranian ultra-nationalists. We conclude that
6910 HUSYEV v. MUKASEY
the IJ’s adverse credibility determination is supported by sub-
stantial evidence.
[11] There is no dispute that Husyev failed to mention his
numerous political speeches in his initial application for asy-
lum and interview with the asylum officer. The question, then,
becomes whether Husyev’s political advocacy amounted to a
“mere . . . detail[ ]” or went to the heart of his asylum claim.
Singh v. Gonzales, 403 F.3d 1081, 1085 (9th Cir. 2005) (quot-
ing Bandari v. INS, 227 F.3d 1160, 1167 (9th Cir. 2000)). On
the weight of this record, evidence of Husyev’s past participa-
tion in high-visibility political advocacy would provide some
of the strongest evidence supporting an inference that he may
be persecuted if returned to Ukraine. Indeed, Husyev himself
mentioned his alleged public appearances among the cardinal
reasons why he claims to be at a greater risk of future perse-
cution than other ethnic Russians living in Ukraine. Thus, we
have little doubt that Husyev’s omission of his political activ-
ism in his application and interview goes to the heart of his
claim. Li v. Ashcroft, 378 F.3d 959, 962 (9th Cir. 2004). See
also Wang v. INS, 352 F.3d 1250, 1257 (9th Cir. 2003) (“It
strains credulity to believe that [petitioner] would fail to men-
tion in either his asylum applications or his previous sworn
testimony the alleged death of a stillborn child—the very inci-
dent that supposedly formed the basis for the Chinese govern-
ment’s alleged sterilization attempt”); Alvarez-Santos v. INS,
332 F.3d 1245, 1254 (9th Cir. 2003) (“It is simply not believ-
able that an applicant for asylum would fail to remember, and
thus to include in either of his two asylum applications or his
principal testimony, a dramatic incident in which he was
attacked, stabbed, and fled to the mountains—the very inci-
dent that precipitated his flight . . . —only to be reminded of
it at the conclusion of his testimony . . . .”). Because Husyev’s
omission of his political speeches is one of the grounds identi-
fied by the IJ, is supported by substantial evidence and goes
HUSYEV v. MUKASEY 6911
to the heart of Husyev’s claim, we accept the IJ’s adverse
credibility finding. See Wang, 352 F.3d at 1259.6
III. Convention Against Torture
On this appeal, Husyev has not advanced any arguments in
support of his claim for relief under the Convention Against
Torture. We therefore conclude that he has waived this
ground for relief. See Kim v. Kang, 154 F.3d 996, 1000 (9th
Cir. 1998) (federal courts of appeal “will not ordinarily con-
sider matters on appeal that are not specifically and distinctly
argued in appellant’s opening brief”).
CONCLUSION
For these reasons, we deny Husyev’s petition for review
with respect to his applications for asylum, withholding of
removal, and relief under the Convention Against Torture.
PETITION FOR REVIEW DENIED.
6
Because we must accept the IJ’s adverse credibility finding if any of
the supporting grounds proffered in the IJ’s decision is valid, Wang, 352
F.3d at 1259, we do not reach the IJ’s other grounds for discrediting
Husyev’s testimony.