Torika Uluiviti v. Eric H. Holder Jr.

FILED
NOT FOR PUBLICATION FEB 19 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TORIKA VUKI ULUIVITI, No. 08-72846
Petitioner, Agency No. A079-589-561
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 14, 2013**
San Francisco, California
Before: FARRIS, THOMAS, and N.R. SMITH, Circuit Judges.
Torika Vuki Uluiviti petitions for review of the Board of Immigration
Appeals’s (“BIA”) decision adopting and affirming the order of the Immigration
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Judge (“IJ”) denying Uluiviti’s applications for asylum, withholding of removal,
protection under the Convention Against Torture (“CAT”), and adjustment of
status. Because the parties are familiar with the history of the case, we need not
recount it here. We deny the petition.
I
The IJ properly concluded that Uluiviti’s asylum application was time-
barred.1 Uluiviti concedes that she failed to file her asylum application within one
year after the date of her arrival in the United States. She has not established that
either changed circumstances or extraordinary circumstances excused the delay. 8
U.S.C. § 1158(a)(2)(D).
Uluiviti’s lawful status terminated when her B-2 nonimmigrant visa expired
on December 16, 2000, yet she did not apply for asylum until October 22, 2001.
Ignorance of the law ordinarily does not constitute an extraordinary circumstance
excusing the untimely filing of an asylum application. See Antonio-Martinez
v. INS, 317 F.3d 1089, 1093 (9th Cir. 2003). And even though Uluiviti’s lawful
status as a B-2 visitor did constitute an extraordinary circumstance, see 8 C.F.R.
1
Because the BIA cited its decision in Matter of Burbano, 20 I. & N. Dec.
872 (BIA 1994), and also provided its own review of the evidence and the law, we
review both the IJ’s decision and the BIA’s decision. Joseph v. Holder, 600 F.3d
1235, 1239–40 (9th Cir. 2010).
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1208.4(a)(5)(iv), Uluiviti did not file her asylum application within a reasonable
time of the expiration of her lawful status. Uluiviti offers no explanation for why
she waited ten months to file her asylum application, even though she knew that
she needed to investigate lawful means of remaining in the United States.
Therefore, Uluiviti’s untimely filing of her asylum application does not fall with
the extraordinary circumstances exception to the one-year filing deadline. See
Husyev v. Holder, 528 F.3d 1172, 1182 (9th Cir. 2008).
Uluiviti has not argued that changed circumstances excused the untimely
filing of her asylum application, so we do not address that exception to the one-
year filing deadline.
II
The IJ’s determination that Uluiviti failed to meet her burden of establishing
eligibility for withholding of removal is supported by substantial evidence. The
evidence in the record does not compel the conclusion that Uluiviti suffered past
persecution on account of a protected ground, as is required by 8 U.S.C. §§
1101(a)(42)(A) and 1158(b)(1). Uluiviti testified that the former Prime Minister
transferred her to another office because she discovered him in an embarrassing
situation that led to a political scandal. She never testified, and no other evidence
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suggests, that this treatment was on account of her race, religion, nationality,
membership in a particular social group, or political opinion.
Likewise, there is no evidence that the single threat Uluiviti received
through an anonymous phone call was motivated by her race, religion, nationality,
membership in a particular social group, or political opinion. Moreover, there is
no evidence that the phone call was made by the government or by forces the
government was unable or unwilling to control. See Nahrvani v. Gonzales, 399
F.3d 1148, 1154 (9th Cir. 2005).
The record also does not compel the conclusion that it is more likely than
not Uluiviti will be persecuted on account of a protected ground if she returns to
Fiji. Uluiviti has testified to a fear of harm from the former Prime Minister and his
political party. But as with her past treatment in Fiji, any harm she alleges she
might suffer would not be on account of a protected ground.
III
The IJ properly determined that he lacked the authority to process Uluiviti’s
application for adjustment of status. The IJ was not authorized to process
Uluiviti’s application without a valid, immediately available immigrant visa.
Matter of Ho, 151 I. & N. Dec. 692 (BIA 1976); see Hernandez v. Ashcroft, 345
F.3d 824, 844 n.21 (9th Cir. 2003). At the time the IJ received Uluiviti’s
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application, Uluiviti did not have an immigrant visa immediately available because
her diversity visa had permanently expired at the end of the fiscal year on
September 30, 2005. See 8 U.S.C. § 1154(a)(1)(I)(ii)(II); 22 C.F.R. § 42.33(d).
That the BIA delayed for four months before granting Uluiviti’s unopposed
motion to remand her application to the IJ is immaterial. “[T]he doctrine of
equitable tolling has no application in cases involving the Congressionally-
mandated, one-year deadline of the DV lottery program.” Carrillo-Gonzalez v.
INS, 353 F.3d 1077 (9th Cir. 2003). Uluiviti’s argument that the BIA carved out
an exception to this Court’s holding in Carrillo-Gonzalez is without merit, because
the BIA lacked the authority to do so. Melkonian v. Ashcroft, 320 F.3d 1061,
1065 (9th Cir. 2003).
PETITION DENIED.
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