Taslimi v. Holder ( 2010 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AZRA TASLIMI, 
Petitioner, No. 05-71006
v.
 Agency No.
A096-360-113
ERIC H. HOLDER, Jr., Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
December 10, 2008—Pasadena, California
Filed January 4, 2010
Before: Harry Pregerson, Dorothy W. Nelson and
David R. Thompson, Circuit Judges.
Opinion by Judge Pregerson
1
4 TASLIMI v. HOLDER
COUNSEL
Haleh Mansouri, Esq., Los Angeles, California, for the peti-
tioner.
Stuart Nickum, Department of Justice Trial Attorney, Wash-
ington, DC, for the respondent.
OPINION
PREGERSON, Circuit Judge:
Azra Taslimi (“Taslimi”) petitions for review of a decision
of the Board of Immigration Appeals (the “BIA”) finding her
statutorily ineligible for asylum. We grant the petition for
review, reverse and remand to the BIA to determine whether,
in an exercise of discretion, Taslimi merits a grant of asylum
under 8 U.S.C. § 1158(b).
FACTS AND PROCEDURAL HISTORY1
1
The IJ expressly found Taslimi and the other witnesses who testified
at Taslimi’s hearing to be credible. We take those witnesses’ factual con-
tentions as true. Navas v. INS, 217 F.3d 646, 652 n.3 (9th Cir. 2000)
(“Where the BIA does not make an explicit adverse credibility finding, we
must assume that the applicant’s factual contentions are true.”) (citing
Gaya Prasad v. INS, 101 F.3d 614, 616 (9th Cir. 1996)).
TASLIMI v. HOLDER 5
Taslimi is a native and citizen of Iran. She entered the
United States on a visitor visa on or about October 3, 1992,
with authorization to remain until October 3, 1993. She has
not left the United States since her entry.
Before coming to the United States, Taslimi was Muslim.
In the United States, however, Taslimi began attending Chris-
tian churches. Beginning in June 2002, Taslimi attended
prayer services and Bible study at the New Beginnings Chris-
tian Fellowship Church of God (“New Beginnings”). On Sep-
tember 5, 2002, Taslimi approached New Beginnings’ pastor
and converted to Christianity. Two members of the church
and the pastor witnessed Taslimi’s conversion ceremony.
Following her conversion, Taslimi had a conversation with
the pastor of New Beginnings, Pastor Ritchie, in which he
encouraged her to legalize her status and helped her find an
attorney. Before learning of asylum, Taslimi did not know
that she might apply for legal status based on her religious
conversion. Taslimi discussed her legal status with others, and
learned of asylum in March or April of 2003. She applied for
asylum on April 2, 2003, a few days short of seven months
after her religious conversion.
Taslimi did not apply for asylum immediately after her
conversion because she wanted to be sure that it was going to
be a life-long decision.2 Pastor Ritchie testified that he viewed
Taslimi’s period of waiting after her conversion and before
applying for asylum to be healthy, because it “demonstrated
the genuineness of her commitment.”
An asylum officer referred Taslimi’s application for asylum
to immigration court for adjudication. During the hearing on
2
When asked why she waited to apply for asylum after her conversion
ceremony and after she learned of asylum, Taslimi explained: “I was seek-
ing to find myself whether I wanted to remain in this [path] or not. I was
contemplating on that.”
6 TASLIMI v. HOLDER
the merits of her asylum application in immigration court,
Taslimi explained that she would fear for her life if she were
removed to Iran, but that she is committed to practicing Chris-
tianity, even if removed. In addition to Taslimi and Pastor Rit-
chie, two members of the New Beginnings Church testified at
the hearing on Taslimi’s behalf.3
Prior to rendering his oral decision, the IJ indicated that he
intended to grant Taslimi withholding of removal and protec-
tion under the Convention Against Torture, but to deny Tas-
limi’s application for asylum because she failed to apply for
asylum within a reasonable period following her religious
conversion. In light of his intent to grant withholding of
removal, the IJ asked Taslimi’s counsel whether she wanted
to reconsider the request for voluntary departure. After briefly
going off the record, Taslimi’s counsel withdrew the request
for voluntary departure and the IJ rendered his oral decision.
The IJ found that Taslimi was eligible for withholding of
removal pursuant to 8 U.S.C. § 1231(b)(3), because Taslimi
showed that it was more likely than not that her life or free-
dom would be threatened in Iran on account of her religion.
The IJ also found Taslimi eligible for protection under the
Convention Against Torture, finding Taslimi met her burden
of establishing that it was more likely than not that she would
be tortured if returned to Iran.
The IJ denied Taslimi’s application for asylum, finding it
to be time-barred. Taslimi converted to Christianity on Sep-
tember 5, 2002, and filed her asylum application on April 2,
2003. The IJ found that Taslimi’s September 5, 2002, conver-
sion constituted “changed circumstances” materially affecting
her eligibility for asylum, which would permit her to file for
asylum more than one year after her entry into the United
States. See 8 C.F.R. § 208.4(a)(2). The IJ further found, how-
3
New Beginnings Church also submitted a petition, signed by ninety-
one people, attesting to Taslimi’s dedication to the church.
TASLIMI v. HOLDER 7
ever, that Taslimi failed to apply for asylum within a “reason-
able period” following the change in circumstances. See 8
C.F.R. § 208(a)(4)(ii).4 The IJ reasoned that Taslimi had lived
in the United States since 1992 and had “ample opportunity
to avail herself of resources regarding the laws of asylum.”
The IJ reasoned that Taslimi did not testify that she was
unaware of asylum during the period between her conversion
and filing for asylum, when Taslimi was waiting to see
whether her conversion would hold. The IJ observed that the
Pastor “did not testify that [Taslimi] discussed asylum with
him at all. The Pastor only discussed the need to resolve [Tas-
limi’s] immigration problem shortly before the baptism, but
never dissuaded her or informed her of the asylum proce-
dure.” Finding no extenuating or special circumstances that
would make the delay in filing for asylum reasonable, the IJ
found that Taslimi failed to show that she qualified for an
exception to the one-year filing deadline. Accordingly, the IJ
found Taslimi statutorily ineligible for asylum. He further
ordered her removed from the United States before granting
her withholding of removal and protection under the Conven-
tion Against Torture. The BIA summarily affirmed the IJ’s
decision pursuant to 8 C.F.R. § 1003.1(e)(4).
Taslimi timely petitioned this court for review. On appeal,
she argues that: (1) the IJ erred by concluding that she failed
to file her asylum application within a reasonable period of
time following changed circumstances affecting her eligibility
for asylum; and (2) the IJ erred by concluding that he was
required to enter an order of removal before granting Taslimi
withholding of removal.
4
8 C.F.R. § 208.4(a)(4)(ii) reads in pertinent part: “The applicant shall
file an asylum application within a reasonable period given those ‘changed
circumstances.’ ”
Taslimi converted to Christianity on September 5, 2002, and filed for
asylum on April 2, 2003. Although the IJ referred to this period as being
“two or three days short of six months,” it is clearly a period just shy of
seven months. Neither party disputes the IJ’s factual finding, and we do
not find it important to our analysis.
8 TASLIMI v. HOLDER
DISCUSSION
I.
[1] Asylum-seekers have one year from the time of their
entry into the United States to file an application for asylum.
8 U.S.C. § 1158(a)(2)(B). This one year filing deadline is sub-
ject to two statutory exceptions. An asylum seeker may apply
for asylum even if it is more than one year after that person’s
entry by demonstrating “either the existence of changed cir-
cumstances which materially affect the applicant’s eligibility
for asylum or extraordinary circumstances relating to the
delay in filing an application.” 8 U.S.C. § 1158(a)(2)(D)
(emphases added).
[2] An applicant demonstrating changed circumstances
must further demonstrate that the application was filed
“within a reasonable period given those ‘changed circum-
stances.’ ” 8 C.F.R. § 208.4(a)(4)(ii). Similarly, an applicant
demonstrating “extraordinary circumstances” must show that
the application was filed “within a reasonable period given
those circumstances.” 8 C.F.R. § 208.4(a)(5).
The IJ found, and the government does not dispute, that
Taslimi’s conversion to Christianity constituted changed cir-
cumstances within the meaning of 8 U.S.C. § 1158(a)(2)(B).
Taslimi disputes the IJ’s finding that she failed to file her
application for asylum within a “reasonable period” given
those changed circumstances.
II.
We must first consider whether we have jurisdiction to
review the IJ’s determination that Taslimi failed to file her
application within a “reasonable period” given her changed
circumstances. “[W]e ‘have jurisdiction to determine whether
jurisdiction exists.’ ” Flores-Miramontes v. INS, 212 F.3d
1133, 1135 (9th Cir. 2000) (quoting Aragon-Ayon v. INS, 206
TASLIMI v. HOLDER 9
F.3d 847, 849 (9th Cir. 2000)). We review our own jurisdic-
tion de novo. Ruiz-Morales v. Ashcroft, 361 F.3d 1219, 1221
(9th Cir. 2004) (citing Rosales-Rosales v. Ashcroft, 347 F.3d
714, 716 (9th Cir. 2003)). Based on our decisions in Ramadan
v. Gonzales, 479 F.3d 646 (9th Cir. 2007) (per curiam) and
Husyev v. Mukasey, 528 F.3d 1172 (9th Cir. 2008), we hold
that we have jurisdiction to consider this question.
8 U.S.C. § 1158(a)(3) provides that “[n]o court shall have
jurisdiction to review any determination of the Attorney Gen-
eral” regarding changed or extraordinary circumstances. Sec-
tion 106 of the REAL ID Act of 2005, however, restored
jurisdiction over “constitutional claims or questions of law
raised upon a petition for review filed with an appropriate
court of appeals.” Pub. L. No. 109-13, Div. B (2005), codified
at 8 U.S.C. § 1252(a)(2)(D).
[3] Accordingly, even though 8 U.S.C. § 1158(a)(3) pur-
ports to strip our jurisdiction over determinations related to
changed or extraordinary circumstances, 8 U.S.C.
§ 1252(a)(2)(D) restored jurisdiction to the extent that deter-
minations concerning changed or extraordinary circumstances
involve constitutional claims or questions of law.
In Ramadan we held that “ ‘questions of law,’ as the phrase
is used in [§ 1252(a)(2)(D)], extends to questions involving
the application of statutes or regulations to undisputed facts,
sometimes referred to as mixed questions of fact and law.”
479 F.3d at 650. In that case we held that we have jurisdiction
to review as a mixed question of fact and law an IJ’s determi-
nation that the petitioner failed to demonstrate “changed cir-
cumstances” allowing her to file for asylum more than one
year after her arrival in the United States. 479 F.3d at 650.5
5
In Ramadan, as in Taslimi’s case, the BIA summarily affirmed the IJ’s
decision without an opinion. Ramadan, 479 F.3d at 649. The IJ’s decision
is the final agency determination, 8 C.F.R. 1003.1(e), and we review it
directly. Lanza v. Ashcroft, 389 F.3d 917, 919 (9th Cir. 2004).
10 TASLIMI v. HOLDER
The factual basis of Ramadan’s claim was undisputed, and
our court “only review[ed] whether the IJ appropriately deter-
mined that the facts did not constitute ‘changed circum-
stances’ as defined by immigration law.” Id. at 657. The issue
here, whether we have jurisdiction to consider the further
question of whether an asylum applicant has filed an applica-
tion within a “reasonable period” following those changed cir-
cumstances, was not presented in Ramadan.
In Husyev, we considered the parallel exception to the one
year deadline of “extraordinary circumstances.” 528 F.3d at
1181. In that case, the petitioner filed an asylum application
364 days after the expiration of his legal status. Id. at 1178.
One example provided by regulation of extraordinary circum-
stances justifying filing an application more than one year
after entry is where an applicant maintains lawful status “until
a reasonable period before the filing of the asylum applica-
tion.” 8 C.F.R. § 208.4(a)(5)(iv). The IJ found that the peti-
tioner failed to show that he filed his asylum application
within a “reasonable period” after the expiration of his lawful
status. Husyev, 528 F.3d at 1178. The facts in Husyev were
undisputed, and the issue our court considered was “how the
statute and regulation apply to those facts.” Id. at 1179. Rely-
ing on Ramadan, we held that we had jurisdiction to review
the IJ’s determination that the petitioner failed to show that he
filed his asylum application within a “reasonable period” fol-
lowing the expiration of his legal status. Id. at 1179. See also
Dhital v. Mukasey, 532 F.3d 1044, 1049 (9th Cir. 2008)
(holding that jurisdiction exists to review the application of
the extraordinary circumstances exception to undisputed
facts).
[4] Based on our holdings in Ramadan and Husyev, we
hold that we have jurisdiction to consider whether Taslimi
filed her asylum application within a “reasonable period”
given the changed circumstances presented by her religious
conversion. As in Ramadan and Husyev, the facts of Taslimi’s
TASLIMI v. HOLDER 11
case are not in dispute, and we review the application of the
statute and regulations to those undisputed facts.
The government argues that we do not have jurisdiction
because there are no meaningful standards by which the court
can judge whether the delay following changed circumstances
is reasonable. We disagree.
In Husyev, the government also argued that “the nature of
the determination of ‘extraordinary circumstances’ is so lack-
ing 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.’ ” Husyev, 528 F.3d at
1180 (quoting Heckler v. Chaney, 470 U.S. 821, 830 (1985)
(internal quotations omitted)). We rejected that argument,
finding that the pertinent regulations “provide standards suffi-
cient to permit meaningful review.” Id. at 1181. We observed
that the regulations contain a non-exhaustive list of potential
extraordinary circumstances which “provides a partial adjudi-
cative standard in and of itself.” Id. We also considered the
explanations given by the Immigration and Naturalization
Service and the Executive Office for Immigration Review in
the Preamble to the permanent regulations. Id. Considering
the language of the regulations and the agency’s explanation
in the prefatory language of the Preamble, we reasoned that
“the agency has taken pains to articulate the ‘reasonable
period’ standard that applies to petitioners whose temporary
nonimmigrant status has expired.” Id.
[5] Here, as in Husyev, we find that the statutory and regu-
latory framework and the agency’s pronouncements provide
a “meaningful standard” by which we may review whether a
petitioner has filed for asylum within a “reasonable period”
given the existence of changed circumstances. The regulations
themselves provide a non-exhaustive list of potential changed
circumstances. 8 C.F.R. § 208.4(a)(4)(i)(A)-(C). Important for
our purposes here, the regulation refines the standard by
which the “reasonable period” may be evaluated by requiring
12 TASLIMI v. HOLDER
an adjudicator to consider an applicant’s delayed awareness of
changed circumstances in determining what constitutes a
“reasonable period” of delay. 8 C.F.R. § 208.4(a)(4)(ii).
In 2000, the agency promulgated permanent regulations
implementing the changed and extraordinary circumstances
exceptions to the one-year bar. 65 Fed. Reg. 76121-01 (Dec.
6, 2000). The Preamble to the permanent regulations shows
that the agency sought to clarify in the permanent regulations
the standards for evaluating the reasonableness of a delay in
filing for asylum following changed circumstances. 65 Fed.
Reg. 76121-01 at 76124. Observing that there was some con-
fusion regarding “the amount of additional time an applicant
should receive in order to file an application when it has been
determined that a changed or extraordinary circumstance is
present in a particular case,” the Preamble noted that “the
finding of changed or extraordinary circumstances justifies
the tardiness being excused to the extent necessary to allow
the alien a reasonable amount of time to submit the applica-
tion.” Id.6 The Preamble further noted that while “there may
be some rare cases in which a delay of one year or more may
be justified because of particular circumstances, in most cases
such a delay would not be justified.” Id.[6] We conclude that the language provided by the statute
and regulations is sufficient to guide our review of whether an
applicant filed an application within a reasonable period fol-
lowing changed circumstances. Whether an asylum applicant
filed for asylum within a “reasonable period” following
changed circumstances affecting her eligibility for asylum is
not one of those “rare instances” in which there is no law to
apply. Heckler, 470 U.S. at 830. We have jurisdiction to
review whether an asylum applicant has filed for asylum
6
We note that this “prefatory language to a regulation, although often
informative, does not have the same binding force as do the regulations
themselves.” Wakkary v. Holder, 558 F.3d 1049, 1058 n.4 (9th Cir. 2009).
TASLIMI v. HOLDER 13
within a reasonable period after changed circumstances mate-
rially affect the applicant’s eligibility for asylum.
III.
We turn now to the IJ’s ruling in this case. The IJ found
that Taslimi’s religious conversion constituted changed cir-
cumstances materially affecting her eligibility for asylum, but
that she failed to apply for asylum within a reasonable period
given her changed circumstances. We are compelled to con-
clude that Taslimi applied for asylum within a reasonable
period of time.
[7] The final regulations were carefully shaped to take reli-
gious conversion into account as a potential changed circum-
stance, and to highlight the subjective nature of such a
change. For instance, prior to the 2000 amendments, the rule
provided as one example of changed circumstances “changes
in objective circumstances relating to the applicant in the
United States . . . that create a reasonable possibility that
applicant may qualify for asylum.” 8 C.F.R.
§ 208.4(a)(4)(i)(B) (1999) (emphasis added). As the Preamble
to the final regulations explained, “[t]he modifier ‘objective’
was removed to avoid confusion in cases where, for example,
the changed circumstance relates to a subjective choice an
applicant has made, such as a religious conversion or adop-
tion of political views.” 65 Fed. Reg. 76121-01 at 76123
(emphasis added). “Additionally, the Department [of Justice]
eliminated the requirement that the changed circumstances
occur within the United States, because there may be situa-
tions in which the changed circumstances, such as religious
conversion, took place outside the United States, but not in
the applicant’s home country.” Id. (emphasis added).
[8] Judging this case on its individual facts, as we must, we
conclude that Taslimi offered substantial credible evidence
establishing that her subjective religious conversion was a
process that began on the date of her conversion ceremony,
14 TASLIMI v. HOLDER
but took some time to for her to incorporate into her life. Tas-
limi applied for asylum within a reasonable period after her
conversion. Taslimi submitted substantial evidence concern-
ing the importance in her church’s religious tradition of
allowing time for spiritual growth. Pastor Ritchie testified:
“[T]he whole perspective is that, you know conversion is
instantaneous but growth is a [process], so . . . that day [of
Taslimi’s conversion] was the start of . . . something new.”
Taslimi testified that she waited to be certain that her conver-
sion was going to be a lifelong commitment, stating: “I was
seeking to find myself whether I wanted to remain in this
[path] or not. I was contemplating on that.” That period of
subjective contemplation was consistent with both the advice
of her pastor, who advised her to follow the law but to allow
herself time to consider the genuineness of her commitment
to Christianity, and the federal regulation, which required her
to file for asylum within a “reasonable period” after her sub-
jective, religious conversion.
In finding that Taslimi failed to apply for asylum within a
reasonable period following her changed circumstances, the IJ
reasoned that Taslimi had lived in the United States since
1992 and had “ample opportunity” to learn about asylum law.7
He further reasoned that “[Taslimi] never testified that she did
not know about asylum during the six month time frame, and
the Pastor did not testify that she discussed asylum with him
at all.
[9] The IJ’s analysis misses the mark. Regardless of when
Taslimi learned of asylum, she testified credibly that her con-
version ceremony marked the beginning of a process of spiri-
7
We note, however, that the requirement that an applicant file for asy-
lum within one year after her entry was not the law when Taslimi entered
the country, and only became the law in 1996. Khunaverdiants v.
Mukasey, 548 F.3d 760, 765 (9th Cir. 2008). Had Taslimi sought to learn
about asylum law prior to October 3, 1993 (when her lawful status in the
United States expired), she would not have learned about the one-year fil-
ing deadline.
TASLIMI v. HOLDER 15
tual growth in her life. By the IJ’s reasoning, Taslimi should
have applied for asylum sooner after her conversion cere-
mony, in spite of Taslimi’s credible testimony that she waited
to apply for asylum in order to be sure that her conversion
was permanent. Even if there were solid evidence that Taslimi
knew about the one-year filing deadline for asylum applica-
tions when she converted to Christianity, filing for asylum
immediately after her conversion to ensure the timeliness of
her application might have cast doubt upon the sincerity of
her faith. On the other hand, by waiting—as she credibly testi-
fied that she did—to be sure of the sincerity of her faith, she
ran the risk that the IJ would find that the delay was unreason-
able, and deny her application for asylum. Taslimi should not
have been forced into this untenable position.
[10] Taslimi testified credibly as to the reasons for her
delay. Her pastor also testified to the propriety, in his view
and in his understanding of his religious tradition, of Tas-
limi’s waiting to test the genuineness of her commitment to
Christianity, and his personal observations that it was a pro-
cess of a few months for “the realization of what happened
. . . to take hold in [Taslimi’s] life . . . .” Applying the statute
and regulations to the undisputed facts of this case, we hold
that substantial evidence does not support the IJ’s determina-
tion that the delay between Taslimi’s conversion ceremony
and her filing of her application for asylum was unreasonable.
IV.
Taslimi next argues that the IJ improperly deprived her of
the privilege of voluntary departure when he entered an order
of removal before he granted her the relief of withholding of
removal and protection under the Convention Against Tor-
ture. There is no need to reach this issue because we remand
for consideration of Taslimi’s asylum application.
Under the BIA’s precedential opinion Matter of I-S- and
C-S-, “when an Immigration Judge decides to grant withhold-
16 TASLIMI v. HOLDER
ing of removal, an explicit order of removal must be included
in the decision.” 24 I. & N. Dec. 432, 434 (BIA 2008). That
opinion expressly notes, however, that it only applies “where
. . . an Immigration Judge grants only withholding of removal,
unaccompanied by a grant of asylum. In instances in which an
Immigration Judge grants both asylum and withholding of
removal, an order of removal would not normally be required,
as an asylum grant does not require an order of removal.” Id.
at n.3.
[11] On remand, the agency will consider Taslimi’s appli-
cation for asylum. Should the agency determine that, in its
discretion, Taslimi merits a grant of asylum, then under Mat-
ter of I-S- and C-S-, an order of removal would no longer be
necessary.
CONCLUSION
[12] Having satisfied the stricter standard for withholding
of removal, Taslimi necessarily satisfied the standard for
showing eligibility for asylum. We remand to the BIA to
determine whether in its discretion Taslimi merits a grant of
asylum. See Fedunyak v. Gonzales, 477 F.3d 1126, 1131 (9th
Cir. 2007).
REVERSED and REMANDED.