Osama Al Ramahi v. Eric Holder, Jr.

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.