Husyev v. Mukasey

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

2

We 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.