Osama Al Ramahi v. Eric Holder, Jr. , 725 F.3d 1133 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
OSAMA JAMAL HAROUN AL No. 12-70628
RAMAHI; NISREEN SAMI AL SHARIF,
Petitioners, Agency Nos.
A088-735-008
v. A088-735-009
ERIC H. HOLDER, JR., Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
June 6, 2013—Seattle, Washington
Filed August 6, 2013
Before: Ronald Lee Gilman,* M. Margaret McKeown,
and Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Ikuta
*
The Honorable Ronald Lee Gilman, Senior Circuit Judge for the U.S.
Court of Appeals for the Sixth Circuit, sitting by designation.
2 AL RAMAHI V. HOLDER
SUMMARY**
Immigration
The panel denied a petition for review of the Board of
Immigration Appeals’ denial of asylum on the basis that
petitioners failed to file their asylum applications within the
one-year deadline or within a reasonable period after their
claimed extraordinary circumstances.
The panel held that the evidence did not compel the
conclusion that petitioners’ over fifteen-month delay in
seeking asylum after changed or extraordinary circumstances
was reasonable where they alleged that the delay was due to
various barriers after petitioners’ lawful status elapsed,
including ineffective assistance of counsel, their inability to
retain attorneys, and their inability to file an application after
issuance of the Notice to Appear.
COUNSEL
Vicky Dobrin and Hilary Han (argued), Dobrin & Han, PC,
Seattle, Washington, for Petitioners.
Stuart F. Delery, Acting Assistant Attorney General, Ernesto
H. Molina, Jr., Assistant Director, Andrew N. O’Malley and
Jeffery R. Leist (argued), Trial Attorneys, Office of
Immigration Litigation, United States Department of Justice,
Civil Division, Washington, D.C., for Respondent.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
AL RAMAHI V. HOLDER 3
OPINION
IKUTA, Circuit Judge:
Osama Al Ramahi and Nisreen Al Sharif petition for
review of the decision by the Board of Immigration Appeals
(BIA) that extraordinary circumstances do not excuse their
untimely applications for asylum. We deny the petition
because substantial evidence supports the BIA’s conclusion
that, even assuming the petitioners could demonstrate
extraordinary circumstances, they did not file their
applications within a “reasonable period given those
circumstances.” 8 C.F.R. § 1208.4(a)(5).
I
We begin by examining the statutory framework that
governs the timeliness of asylum applications. To qualify for
asylum, an alien must demonstrate by clear and convincing
evidence that the alien’s application for asylum was “filed
within 1 year after the date of the alien’s arrival in the United
States.” 8 U.S.C. § 1158(a)(2)(B); see Ramadan v. Gonzales,
479 F.3d 646, 649 (9th Cir. 2007) (per curiam). There is a
statutory exception to this one-year filing deadline: an alien
may file a late application by demonstrating to the
satisfaction of the Attorney General either (1) “the existence
of changed circumstances which materially affect the
applicant’s eligibility for asylum” or (2) “extraordinary
circumstances relating to the delay in filing.” 8 U.S.C.
§ 1158(a)(2)(D); see Ramadan, 479 F.3d at 649–50. The
applicable regulations provide a non-exhaustive list of
qualifying “extraordinary circumstances,” 8 C.F.R.
§ 1208.4(a)(5), which includes “maintain[ing] . . . lawful
immigrant or nonimmigrant status . . . until a reasonable
4 AL RAMAHI V. HOLDER
period before the filing of the asylum application.” 8 C.F.R.
§ 1208.4(a)(5)(iv); see also Wakkary v. Holder, 558 F.3d
1049, 1056 (9th Cir. 2009).
If an alien successfully demonstrates the existence of
extraordinary circumstances, the alien must then demonstrate
that the asylum application was filed within a “reasonable
period given those circumstances.” 8 C.F.R. § 1208.4(a)(5);
see Singh v. Holder, 656 F.3d 1047, 1052 (9th Cir. 2011).
Therefore, an alien who claims the extraordinary
circumstance of maintenance of lawful status, see
§ 1208.4(a)(5)(iv), must show that “his delay in filing was
‘reasonable under the circumstances,’” Wakkary, 558 F.3d at
1057, as “determined on the basis of all the factual
circumstances of the case.” Husyev v. Mukasey, 528 F.3d
1172, 1182 (9th Cir. 2008); see also Wakkary, 558 F.3d at
1058.
In evaluating the reasonableness of a delay in filing, we
have looked for guidance to the Preamble to the final
regulations governing asylum procedures. Husyev, 528 F.3d
at 1181–82 & n.4. The Preamble states:
Generally, the Department expects an asylum-
seeker to apply as soon as possible after
expiration of his or her valid status, and
failure to do so will result in rejection of the
asylum application. Clearly, waiting six
months or longer after expiration or
termination of status would not be considered
reasonable. Shorter periods of time would be
considered on a case-by-case basis, with the
decision-maker taking into account the totality
of the circumstances.
AL RAMAHI V. HOLDER 5
Asylum Procedures, 65 Fed. Reg. 76121 at 76123–24 (Dec.
6, 2000) (emphasis added). In other words, it is reasonable
for an applicant “to apply as soon as possible after expiration”
of the alien’s lawful status, and unreasonable to wait “six
months or longer after expiration or termination of status.”
Id. We have interpreted the Preamble to mean that a
reasonable period of delay “ordinarily would not exceed six
months,” Husyev, 528 F.3d at 1182, but that “a filing delay
of less than six months after an applicant’s nonimmigrant
status has expired is presumptively reasonable.” Singh,
656 F.3d at 1056. The presumptive six-month deadline does
not “foreclose other reasonable periods, and exceptions
thereto, that may be set out by the agency, nor [does it]
preclude individualized determinations of reasonableness of
delay.” Wakkary, 558 F.3d at 1058–59 (quoting Husyev,
528 F.3d at 1182 n.4).
Therefore, in evaluating whether substantial evidence
supports the BIA’s determination regarding the
reasonableness of an alien’s delay in filing an asylum
application, we consider all the factual circumstances of the
case in light of the guidance provided by the Preamble. See
Wakkary, 558 F.3d at 1058.
II
We turn now to the facts of this case. Al Ramahi and Al
Sharif, a married couple from Jordan, testified that they came
to the United States to escape persecution by Al Sharif’s
brothers. According to Al Sharif’s testimony, her brothers
opposed her marriage to Al Ramahi because he was an
outsider, and as a result, the brothers refused to give Al Sharif
her share of the inheritance from their father. When Al Sharif
continued demanding her due, her brothers beat her and held
6 AL RAMAHI V. HOLDER
her prisoner in the family home. Al Sharif’s brothers
eventually allowed her to travel to the United States, but only
after she divorced Al Ramahi.
Al Sharif entered the United States on a visa on May 30,
2007, with authorization to stay until November 29, 2007. Al
Ramahi soon followed, entering the United States on a visa
on July 1, 2007, with authorization to stay until December 31,
2007. The petitioners had until May 30 and July 1, 2008 to
file their asylum application, see 8 U.S.C. § 1158(a)(2)(B),
but did not file until April 29, 2009, nearly two years after
entering the United States.
The following relevant events occurred after the
petitioners’ entry into the country. Once they were reunited
in the United States, Al Sharif and Al Ramahi remarried. In
September 2007, the petitioners’ son was born. In October or
November 2007, Al Sharif’s brothers discovered that Al
Sharif had reunited with Al Ramahi in the United States.
Shortly afterwards, the brothers visited the home of Al
Ramahi’s family in Jordan and threatened to kill both Al
Sharif and Al Ramahi. Al Ramahi learned about this incident
from his brother. In December 2007, Al Ramahi met with an
attorney, Bart Klein, to get information about their options for
remaining in the country. Al Ramahi did not tell Klein about
the persecution he and his wife had experienced, and Klein
informed Al Ramahi that the couple was not eligible for
asylum.
Al Ramahi continued to seek legal help. In January and
February 2008, he called two phone numbers on a list of pro
bono immigration attorneys. He called the first number twice
and left a message each time, but no one returned his calls.
AL RAMAHI V. HOLDER 7
No one answered when he called the second number, and he
did not try again.
On July 2, 2008, a few weeks after Al Sharif’s one-year
deadline for filing for asylum had passed and a day after Al
Ramahi’s deadline had passed, Al Ramahi met with a second
lawyer, Stephanie Thorpe, and told her about their fear of
persecution in Jordan. Thorpe advised Al Ramahi that
asylum applications generally had to be filed within one year
of entering the United States, but suggested that Al Ramahi
could be eligible to file an untimely asylum application based
on changed circumstances. She advised him to file as soon as
possible. After speaking to Thorpe, Al Ramahi asked his
parents for money to retain Thorpe’s law firm, but his parents
could not help him financially.
Approximately one week later, on July 8, 2008,
immigration officers visited the couple’s home, issued the
couple Notices to Appear in immigration court, and detained
Al Ramahi for six hours. After Al Ramahi’s release, a friend
loaned him money to hire Thorpe’s firm, which began
representing the couple. A few months later, in September
2008, the government filed the Notices to Appear with the
immigration court, thus commencing proceedings. See
Samayoa-Martinez v. Holder, 558 F.3d 897, 901 (9th Cir.
2009).
In January 2009, Al Ramahi and Al Sharif filed a motion
to advance their master calendar hearing so that they could
file their asylum applications. The immigration judge (IJ)
granted the motion, and the couple filed their applications for
asylum at the April 20, 2009 hearing.
8 AL RAMAHI V. HOLDER
The IJ ultimately rejected the petitioners’ asylum
applications as untimely. Although the petitioners argued
that their late filing should be excused due to changed and
extraordinary circumstances, the IJ noted that the petitioners
had submitted their applications “well beyond the one-year
deadline set by the statute” and concluded that the petitioners
had not demonstrated either changed or extraordinary
circumstances. Nevertheless, the IJ determined that both
petitioners qualified for withholding of removal and granted
that relief.1
On appeal to the BIA, the petitioners pressed their
argument that changed or extraordinary circumstances
excused their untimeliness in filing their asylum applications.
According to the petitioners, the threats received from Al
Sharif’s brothers in November 2007 constituted materially
changed circumstances, and the lapse of their lawful status at
the end of 2007 constituted extraordinary circumstances.
Further, the petitioners argued that their delay in filing for
asylum was reasonable given the deficient advice of Bart
Klein, the responsibility of caring for a newborn baby, the
difficulty in seeking legal advice, and the fact that the
government served them with notices to appear in July 2008.
The BIA affirmed in a reasoned opinion. It assumed that
the petitioners had experienced changed or extraordinary
circumstances at the end of 2007 when their lawful status
1
Because the IJ granted withholding of removal to Al Ramahi and Al
Sharif, the government cannot remove them to Jordan so long as they
remain eligible for that form of relief. 8 U.S.C. § 1231(b)(3)(A) (2006);
Wakkary, 558 F.3d at 1053. Nevertheless, Al Ramahi and Al Sharif
continue to seek asylum, which offers additional benefits. See
Khunaverdiants v. Mukasey, 548 F.3d 760, 767 (9th Cir. 2008).
AL RAMAHI V. HOLDER 9
lapsed. Nevertheless, the BIA concluded that their asylum
applications were untimely because the petitioners failed to
meet their burden of showing that their applications were
filed within a reasonable period. The BIA held that because
petitioners had not met the procedural requirements for filing
an ineffective assistance of counsel claim, see Matter of
Lozada, 19 I & N Dec. 637 (BIA 1988), the IJ had no basis
for assessing their claim, and thus they failed to establish that
Klein’s deficient performance had caused their delay. The
BIA also rejected petitioners’ argument that their difficulties
in obtaining representation, financial problems, and being
served with Notices to Appear, made their delay reasonable.
Noting that exceptions to the one-year filing deadline were
not meant to be granted after a year of delay except in rare
cases, the BIA concluded that the petitioners’ two-year delay
was not reasonable because it “was essentially one which
they chose.” Al Ramahi and Al Sharif timely petitioned for
review of this decision.
III
As a threshold matter, we must determine whether we
have jurisdiction to consider Al Ramahi and Al Sharif’s
petition for review. The Immigration and Nationality Act
provides that “[n]o court shall have jurisdiction to review any
determination of the Attorney General” made pursuant to
§ 1158(a)(2), which includes the applicability of the
“extraordinary circumstances” exception to the one-year
filing deadline. 8 U.S.C. § 1158(a)(3); § 1158(a)(2)(D). On
its face, this jurisdiction-stripping language would bar us
from reviewing the BIA’s determination that the
extraordinary circumstances exception is inapplicable in this
case. But we have concluded that we have authority to
review such determinations under 8 U.S.C. § 1252(a)(2)(D),
10 AL RAMAHI V. HOLDER
which preserves our jurisdiction over “constitutional claims
or questions of law raised upon a petition for review.”
Ramadan, 479 F.3d at 650. We have held that “questions of
law” encompass “questions involving the application of
statutes or regulations to undisputed facts,” id., and therefore,
that we may review the BIA’s application of the changed or
extraordinary circumstances exception when the historical
facts are undisputed, see id.2
We review the BIA’s determination for substantial
evidence and will uphold its decision if it “is supported by
reasonable, substantial, and probative evidence on the record
considered as a whole.” Singh, 656 F.3d at 1051, 1056
2
We are alone in interpreting the REAL ID Act to allow for such broad
review in this area. Nearly all our sister circuits have rejected Ramadan’s
view that the REAL ID Act grants jurisdiction to review the BIA’s
application of the changed or extraordinary circumstances exception.
They have concluded that the determination entails an unreviewable
exercise of discretion or that “questions of law” does not include mixed
questions of law and fact. See Lumataw v. Holder, 582 F.3d 78, 86 (1st
Cir. 2009); Sukwanputra v. Gonzales, 434 F.3d 627, 635 (3d Cir. 2006);
Gomis v. Holder, 571 F.3d 353, 358–59 (4th Cir. 2009); Zhu v. Gonzales,
493 F.3d 588, 596 & n.31 (5th Cir. 2007); Almuhtaseb v. Gonzales,
453 F.3d 743, 747–48 (6th Cir. 2006); Viracacha v. Mukasey, 518 F.3d
511, 515–16 (7th Cir. 2008); Ignatova v. Gonzales, 430 F.3d 1209, 1214
(8th Cir. 2005); Ferry v. Gonzales, 457 F.3d 1117, 1130 (10th Cir. 2006);
Chacon-Botero v. United States Att’y Gen., 427 F.3d 954, 956–57 (11th
Cir. 2005) (per curiam); see also Lin v. Holder, 610 F.3d 1093, 1098 (9th
Cir. 2010) (O’Scannlain, J., specially concurring) (collecting cases).
While the Second Circuit has declined to “determine the precise outer
limits of the term ‘questions of law’ under the REAL ID Act,” Chen v.
U.S. Dep’t of Justice, 471 F.3d 315, 328 (2d Cir. 2006), it appears to have
read that term more narrowly than we have. See id. at 328–29 & n.7; Liu
v. I.N.S., 508 F.3d 716, 721 & n.3 (2d Cir. 2007). But in the absence of
any intervening higher authority we are bound by Ramadan. See Miller
v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc).
AL RAMAHI V. HOLDER 11
(internal quotation marks omitted). We may reverse the BIA
only “when the evidence in the record compels a reasonable
factfinder to conclude that the [BIA’s] decision is incorrect.”
Id. at 1051–52 (internal quotation marks omitted).
We now turn to the question whether the BIA’s
determination that Al Ramahi and Al Sharif failed to show
they filed their asylum applications within a reasonable
period of time was supported by substantial evidence.
Beginning with the guidance provided by the Preamble, we
note that Al Ramahi and Al Sharif filed their asylum
applications more than fifteen months after the lapse of their
lawful status in November and December 2007, far into the
zone that “would not be considered reasonable” per the
Preamble, 65 Fed. Reg. at 76123-24, and more than twice the
presumptive six-month deadline we have previously
recognized. See Singh, 656 F.3d at 1056. The guidance
provided by the Preamble, therefore, supports the BIA’s
determination.
We next consider the petitioners’ arguments about other
factual circumstances relating to the reasonableness of their
delay. Wakkary, 558 F.3d at 1058. According to the
petitioners, their delay in filing asylum applications was
reasonable because of various barriers they encountered after
their lawful status elapsed, including deficient advice from
Klein, their inability to retain other attorneys, and (once they
did retain legal counsel) their inability to file asylum
applications due to having been served Notices to Appear.
We disagree that these circumstances compel the
conclusion that the petitioners’ delay in filing was reasonable.
First, in the absence of the evidentiary support required by
Lozada, the BIA could reasonably conclude that it lacked a
12 AL RAMAHI V. HOLDER
basis from which to analyze petitioners’ claim that Klein’s
advice was deficient. See Tamang v. Holder, 598 F.3d 1083,
1090–91 (9th Cir. 2010). Compliance with Lozada ensures
that the BIA has an objective basis “for assessing the
substantial number of claims of ineffective assistance of
counsel that come before [it].” Reyes v. Ashcroft, 358 F.3d
592, 596 (9th Cir. 2004) (quoting Lozada, 19 I & N Dec. at
639); see 8 C.F.R. § 1208.4(a)(5)(iii) (codifying Lozada’s
requirements).3 Thus, the BIA did not err in holding that the
petitioners failed to establish that Klein’s advice was
deficient.
Petitioners argue that even if they failed to establish
ineffective assistance of counsel, the BIA erred in not
considering Klein’s advice as part of “all the factual
circumstances of the case” that made their delay in filing
reasonable. Husyev, 528 F.3d at 1182. We disagree. The
3
8 C.F.R. § 1208.4(a)(5)(iii) establishes that ineffective assistance of
counsel can excuse an untimely asylum application so long as:
(A) The alien files an affidavit setting forth in detail the
agreement that was entered into with counsel with
respect to the actions to be taken and what
representations counsel did or did not make to the
respondent in this regard;
(B) The counsel whose integrity or competence is being
impugned has been informed of the allegations leveled
against him or her and given an opportunity to respond;
and
(C) The alien indicates whether a complaint has been
filed with appropriate disciplinary authorities with
respect to any violation of counsel’s ethical or legal
responsibilities, and if not, why not[.]
AL RAMAHI V. HOLDER 13
BIA considered the effect of Klein’s advice, along with other
efforts by the petitioners to obtain legal representation and
file their asylum applications, but concluded that all the
factual circumstances were insufficient to carry the
petitioners’ burden.
The BIA’s conclusion is supported by substantial
evidence. Al Ramahi’s attempt to contact two lawyers within
a month after his discussions with Klein demonstrates that
Klein’s advice did not discourage the petitioners from seeking
further legal advice or a second opinion. Moreover, even
after an attorney (Thorpe) informed them of the one-year
deadline for asylum applications and urged them to file as
soon as possible, they failed to do so. Although the
petitioners claim they lacked the funds to hire Thorpe, the
government correctly points out that the petitioners could
have filed asylum applications themselves, sought pro bono
counsel or other assistance, or contacted immigration
authorities. Moreover, the petitioners were ultimately able to
obtain the necessary funds to retain Thorpe’s firm.
Finally, the petitioners contend that the BIA failed to give
sufficient weight to the effect of the service of Notices to
Appear on their ability to file their asylum applications.
Again, we disagree. The petitioners could have filed
affirmative asylum applications with the Department of
Homeland Security’s Asylum Office even after the
government served them with Notices to Appear on July 8,
2008. Although the immigration court would have ultimately
assumed jurisdiction over these applications, see 8 C.F.R.
§ 1208.2(b), the petitioners concede that nothing prevented
them from filing such applications. Instead, the petitioners
waited until January 2009 to take any concrete steps towards
filing their applications.
14 AL RAMAHI V. HOLDER
In sum, considering all the factual circumstances of this
case in light of the guidance provided by the Preamble, we
are not compelled to reverse the BIA’s conclusion that the
petitioners did not file their asylum applications within a
reasonable period after the lapse of their lawful status in the
United States. See INS v. Elias-Zacarias, 502 U.S. 478, 481
& n.1 (1992) (“To reverse the BIA finding we must find that
the evidence not only supports that conclusion, but compels
it.”).
PETITION DENIED.