Singh v. Holder

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BHUPINDER SINGH, 

Petitioner, No. 07-70056

v.

 Agency No.

A078-668-982

ERIC H. HOLDER JR., Attorney

General, OPINION

Respondent.



On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

April 13, 2011—San Francisco, California

Filed September 8, 2011

Before: Sidney R. Thomas and Johnnie B. Rawlinson,

Circuit Judges, and Cormac J. Carney, District Judge.*

Opinion by Judge Thomas;

Concurrence by Judge Rawlinson

*The Honorable Cormac J. Carney, District Judge for the U.S. District

Court for Central California, Santa Ana, sitting by designation.

17055

17058 SINGH v. HOLDER

COUNSEL

Kathleen Taylor, Law Office of Kuldip S. Dhariwal, Fremont,

California, for petitioner Bhupinder Singh.

Tony West, Assistant Attorney General, Civil Division, Carol

Federighi, Senior Litigation Counsel, Office of Immigration

Litigation, Song E. Park, Attorney, Office of Immigration Lit-

igation, United States Department of Justice, Washington,

D.C., for respondent United States of America.

SINGH v. HOLDER 17059

OPINION

THOMAS, Circuit Judge:

In this petition for review, we consider whether the peti-

tioner established changed or extraordinary circumstances that

would excuse his untimely application for asylum. When the

agency addressed this question, it applied incorrect legal stan-

dards. Accordingly, we grant Singh’s petition for review and

remand this matter to the BIA so that it may apply the correct

standards.

I

Bhupinder Singh, a citizen and national of India, entered

the United States on August 26, 1999, as a nonimmigrant visi-

tor with initial authorization to remain until September 24,

1999. He fled India on account of abuse he suffered at the

hands of police in India, who mistakenly believed that he

sympathized with terrorists. The police arrested Singh, with-

out a warrant, three times. Each time, they detained him for

a lengthy period of time, up to four days, and questioned him

about his activities and knowledge of suspected terrorists.

When they detained him, the police severely beat Singh with

sticks and leather straps until he lost consciousness. He

required medical treatment after each of the three arrests.

Singh was released from his first arrest after his parents guar-

anteed the police that they would watch over him. Singh was

released from his third arrest only after his father paid a

60,000 rupee bribe to the police.

After being in the United States for about a month, Singh

applied for an extension of his nonimmigrant visa on Septem-

ber 30, 1999. Singh claimed he wanted to stay in the United

States because it was not safe to return to India. He hoped

that, while he was in the United States, his family could

arrange a “settlement” or “compromise” with the Indian

17060 SINGH v. HOLDER

police that would allow him to return without being harassed

or abused.

The former Immigration and Naturalization Service (now

part of the Department of Homeland Security)1 approved

Singh’s visa-extension request nearly a year later on August

17, 2000, retroactively effective. While his first request was

pending, Singh submitted a second request to extend his visa

to August 24, 2000.

Not long after Singh filed his second request, Indian police

arrested Singh’s wife at her home. According to Singh’s

wife’s written statement,2 the police came to her house late at

night on September 6, 2000, asking questions about him and

accusing him of being a militant. They then took Singh’s wife

into custody and “started slapping and dragging [her] and told

[her] that now your husband will come to the police station.”

Singh’s wife told the police she would file a complaint against

them. The police then beat her with “wooden rods and told

[her] that in the police station they were going to teach [her]

how to file a complaint.” Once at the police station, Singh’s

wife claims the officers locked her in a room, beat her again,

and raped her.

Singh filed his application for asylum on November 20,

2000, two-and-a-half months after his wife’s arrest. At the

1

On March 1, 2003, the functions of the former INS were transferred

from the Department of Justice to three agencies (the U.S. Immigration

and Customs Enforcement, U.S. Customs and Border Protection, and U.S.

Citizenship and Immigration Services) in the newly formed Department of

Homeland Security. See Homeland Security Act of 2002, Pub. L. No. 107-

296, 116 Stat. 2135.

2

Singh’s wife was available to testify before the immigration judge

(“IJ”), but she did not. The record does not indicate why she did not tes-

tify, but the IJ speculated that she did not want her husband to know what

happened during the arrest.

SINGH v. HOLDER 17061

time, Singh’s second request for a visa extension was still pend-

ing.3

Because Singh’s application for asylum was filed more

than a year after he had first entered the United States, his

application was untimely. 8 U.S.C. § 1158(a)(2)(B). The

Department of Homeland Security referred his application to

the immigration court and placed him in removal proceedings.

The Department charged Singh as removable under 8 U.S.C.

§ 1227(a)(1)(B) for remaining in the United States longer than

his visa permitted.

II

Singh conceded removability and sought asylum, withhold-

ing of removal, and protection under the Convention against

Torture. The immigration judge (“IJ”) found Singh’s testi-

mony credible, and he granted Singh’s request for withhold-

ing of removal to India and protection under the Convention

Against Torture.

As to Singh’s asylum claim, the IJ concluded that Singh

“has in fact been the victim of past persecution by inferences

of a government who believes that he is an enemy, who

believes he is politically affiliated with a community that

seeks an independence.” And:

[B]ased upon past events it is more likely than not,

assuming the truth of Mr. Singh’s representations,

that if he returns to his homeland he will be subject

to the same form of maltreatment. Acts of persecu-

tion[,] because of political opinion[,] has [sic] been

imputed to him, and there clearly exists a pattern and

practice as represented in his application.

3

Singh’s second request for a visa extension was approved February 15,

2001, nearly six months after he filed the request. The second extension

authorized Singh to remain in the United States until August 24, 2000, was

deemed retroactively effective.

17062 SINGH v. HOLDER

Singh’s application was untimely, but he argued that his

wife’s arrest was a “changed circumstance” that excused the

filing delay under 8 U.S.C. § 1158(a)(2)(D).4 The IJ disagreed

because Singh did not provide “clear and convincing” evi-

dence that the settlement negotiations amounted to a changed

circumstance (the IJ did not consider whether the arrest of

Singh’s wife was a changed circumstance). As a result, the IJ

rejected Singh’s asylum application as time-barred.

Singh timely appealed the IJ’s decision to the BIA, which

adopted the IJ’s decision without opinion, citing In re Bur-

bano, 20 I. & N. Dec. 872, 874 (BIA 1994) (noting that adop-

tion or affirmance of a decision of an IJ, in whole or in part,

is “simply a statement that the Board’s conclusions upon

review of the record coincide with those which the Immigra-

tion Judge articulated in his or her decision.”).

Singh timely petitioned us to review the BIA’s order, but,

while that petition was pending, the Government filed an

unopposed motion to remand the matter to the BIA so that it

could determine whether Singh had established “extraordinary

circumstances” under 8 U.S.C. § 1158(a)(2)(D) that would

excuse his untimely application.

8 C.F.R. § 1208.4(a)(5)(iv) enumerates “[maintenance] of

. . . lawful immigrant or nonimmigrant status” as a possible

“extraordinary circumstance.” Singh had maintained his law-

ful nonimmigrant status until August 24, 2000, but the BIA

concluded the extraordinary-circumstances exception did not

apply for two reasons. First, according to the BIA, Singh’s

4

8 U.S.C. § 1158(a)(2)(D) reads:

An application for asylum of an alien may be considered, not-

withstanding [the one-year deadline] if the alien demonstrates to

the satisfaction of the Attorney General 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 within the [one-year period].

SINGH v. HOLDER 17063

lawful nonimmigrant status “was not directly related to the

filing of his application for asylum” because “it was the arrest

of his wife that triggered his application and not because he

was in lawful nonimmigrant status.” Second, the BIA con-

cluded that Singh unreasonably delayed his asylum applica-

tion by filing it seven months after his first visa extension

expired and three months after his second expired.

Singh timely petitioned us to review both of the BIA’s

decisions.

III

We have jurisdiction to review Singh’s petition under 8

U.S.C. § 1252. We may review the agency’s application of

the changed or extraordinary circumstances exception to

undisputed facts. Vahora v. Holder, 641 F.3d 1038, 1042 (9th

Cir. 2011); Viridiana v. Holder, 630 F.3d 942, 946 (9th Cir.

2011); Taslimi v. Holder, 590 F.3d 981, 984 (9th Cir. 2010);

Husyev v. Mukasey, 528 F.3d 1172, 1181 (9th Cir. 2008);

Ramadan v. Gonzales, 479 F.3d 646 (9th Cir. 2007) (per

curiam). As evident below, the relevant facts are undisputed,

so we have jurisdiction.

We review the agency’s legal determinations de novo and

its factual findings for substantial evidence. Lopez-Birrueta v.

Holder, 633 F.3d 1211, 1214 (9th Cir. 2011). Under the sub-

stantial evidence standard, we will uphold the agency’s deci-

sion “if the decision is supported by reasonable, substantial,

and probative evidence on the record considered as a whole.”

Tampubolon v. Holder, 610 F.3d 1056, 1059 (9th Cir. 2010)

(citations and internal quotation marks omitted). We will

reverse the agency when “the evidence in the record compels

a reasonable factfinder to conclude that the [agency’s] deci-

sion is incorrect.” Id. (citations and internal quotation marks

omitted).

17064 SINGH v. HOLDER

IV

[1] An applicant must ordinarily file an asylum application

within one year after arriving in the United States. 8 U.S.C.

§ 1158(a)(2)(B). However, the Government may still consider

a late application if the applicant establishes (1) changed cir-

cumstances that materially affect the applicant’s eligibility for

asylum or (2) extraordinary circumstances directly related to

the delay in filing an application. Id. at § 1158(a)(2)(D); 8

C.F.R. § 1208.4(a)(4)(i), (5). Here, the agency applied incor-

rect legal standards to both of these inquiries. And it errone-

ously concluded that Singh failed to file his asylum

application within a reasonable period of time after his lawful

nonimmigrant status expired. We remand this matter to the

BIA so that it may apply the correct legal standards in the first

instance. Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1058

(9th Cir. 2006) (“But where the BIA applies the wrong legal

standard to an applicant’s claim, the appropriate relief from

this court is remand for reconsideration under the correct stan-

dard, not independent review of the evidence.”)

A

[2] “ ‘[C]hanged circumstances’ in [8 U.S.C.

§ 1158(a)(2)(D)] shall refer to circumstances materially

affecting the applicant’s eligibility for asylum.” 8 C.F.R.

§ 1208.4(a)(4)(i); see also Ramadan, 479 F.3d 657-58. Once

an applicant has demonstrated changed circumstances, he

must show that the application was filed “within a reasonable

period given those ‘changed circumstances.’ ” 8 C.F.R.

§ 1208.4(a)(4)(ii).

Here, the IJ erred in two respects when he concluded that

Singh had not demonstrated changed circumstances.5

5

As to this issue, we review the IJ’s decision because the BIA adopted

it without opinion, citing In re Burbano, 20 I. & N. Dec. 872. See Tamang

v. Holder, 598 F.3d 1083, 1088 (9th Cir. 2010).

SINGH v. HOLDER 17065

First, the IJ applied the wrong legal standard. The IJ

remarked: “The law requires the respondent to present evi-

dence that is clear and convincing that there exists a changed

circumstance.” The IJ then focused solely on the purported

settlement negotiations (ignoring the arrest of Singh’s wife)

and concluded the evidence surrounding the settlement was

not “clear and convincing.” Specifically, the IJ commented:

It is unclear what that settlement might be because

the respondent never testified as to the details of

what he [thought his] family hoped to accomplish to

make it safe for him to return to his homeland, to

make it safe for him to live in his country in peace.

[3] Changed circumstances, though, are not evaluated

under a “clear and convincing” standard.6 While an applicant

must show “by clear and convincing evidence that the appli-

cation has been filed within 1 year after the date of the alien’s

arrival in the United States,” 8 U.S.C. § 1158(a)(2)(B), the

applicant need only provide evidence “[t]o the satisfaction of

. . . the immigration judge . . . that he or she qualifies for an

exception to the 1-year deadline,” 8 C.F.R.

§ 1208.4(a)(2)(i)(B). See also Husyev, 528 F.3d at 1180.

Thus, the IJ erred by holding Singh to a “clear and convinc-

ing” standard.

[4] Second, the IJ failed entirely to analyze whether the

arrest of Singh’s wife was a changed circumstance. Instead,

the IJ based his analysis solely on the alleged settlement nego-

tiations. The arrest, though, might very well be a changed cir-

cumstance. Taking Singh’s testimony as true, his wife’s arrest

6

At any rate, the details of the settlement negotiations were sufficiently

clear. Singh testified that his family hoped to arrange a compromise or set-

tlement with the police by paying them money in return for their assurance

that they would not harm or harass Singh if he returned. The efficacy of

this plan is a separate issue, but the details are sufficiently clear to explain

why Singh delayed his application for asylum.

17066 SINGH v. HOLDER

prompted his late application.7 By the Government’s own

admission, the arrest was “further evidence” of the persecu-

tion that Singh suffered in India. Evidence of the arrest might

“[make Singh’s] application much stronger.” Fakhry v.

Mukasey, 524 F.3d 1057, 1063-64 (9th Cir. 2008). For

instance, since Singh would enjoy the presumption of a well-

founded fear of persecution if his application is accepted,8 his

wife’s arrest might make it more difficult for the Government

to rebut that presumption.9 See 8 C.F.R. § 1208.13(b)(1).

Admittedly, since Singh’s wife did not testify as to her

alleged assault and rape during the arrest, the IJ cannot be

faulted for failing to analyze those specific facts.10 The IJ

erred by failing entirely to analyze whether the arrest was a

changed circumstance.

The Government argues that the relevant circumstances—

e.g., the arrest of Singh’s wife—are not changed circum-

stances because they merely provide “further support [to

7

The IJ found Singh credible. As a result, Singh’s testimony and por-

trayal of the facts must be accepted as true. Kalubi v. Ashcroft, 364 F.3d

1134, 1137 (9th Cir. 2004). At a minimum, the IJ was required to accept

as true Singh’s testimony that his wife was arrested during the time she

and his family were attempting to negotiate a settlement or compromise

for his return.

8

The IJ concluded that Singh had suffered past persecution. “If past per-

secution is established, a rebuttable presumption of a well-founded fear

arises, 8 C.F.R. § 208.13(b)(1), and the burden shifts to the government to

demonstrate that there has been a fundamental change in circumstances

such that the applicant no longer has a well-founded fear.” Tawadrus v.

Ashcroft, 364 F.3d 1099, 1103 (9th Cir. 2004) (internal quotation marks

omitted).

9

The Government argues that Singh “provides no explanation as to why

his wife’s arrest is indicative of the fact that he is no longer able to reside

safely in a different region of India.” The Government’s critique is inappo-

site. The Government—not Singh—bears the burden of showing that

Singh can safely relocate to another part of the country. Melkonian v. Ash-

croft, 320 F.3d 1061, 1070 (9th Cir. 2003).

10

Singh’s wife’s statement is in the record, but the record does not

describe the extent to which the IJ relied on it or considered it.

SINGH v. HOLDER 17067

Singh’s] reasons for fleeing his home country in the first

place.” We squarely rejected this argument in Fakhry, 524

F.3d 1057.

In Fakhry, we held that a petitioner might still qualify for

the changed circumstances exception even if the relevant cir-

cumstances do not create a new basis of persecution but sim-

ply provide further evidence of the type of persecution

already suffered. Id. at 1063-64. We posed the following

example:

Take, for example, the case of an alien who came to

the United States wanting to apply for asylum and

fearing persecution should she return, but felt that

she would not qualify on the objective reasonable-

ness grounds. Not wanting to file an application that

would be denied, she did not file. After her second

year in the United States, changed circumstances in

her country of origin made her application much

stronger, prompting her late application. Why should

she be penalized for declining to clog the immigra-

tion courts with a meritless application? The stat-

ute’s description of “changed circumstances which

materially affect the applicant’s eligibility for asy-

lum” reasonably includes this alien’s situation.

Id. In short, changed circumstances may include events “in

[an applicant’s] country of origin [that make] her application

much stronger, prompting her late application.” Id.

[5] Here, the Government concedes that the relevant cir-

cumstances “further support [Singh’s] reasons for fleeing his

home country in the first place.” Singh testified that he waited

more than a year to apply for asylum because he thought con-

ditions would improve so that he could return to India. In par-

ticular, he hoped his family could reach a “compromise” or

“settlement” with the police that would allow him to return

without the threat of being beaten or arrested. After Singh’s

17068 SINGH v. HOLDER

wife was arrested, he decided to apply for asylum because “if

they can arrest her then they will kill me . . . .” Thus, just as

the Government argues, the arrest is “further evidence” and

provides “further support” to Singh’s eligibility for asylum.

This evidence may establish changed circumstances under

Fakhry.

[6] Because the IJ applied the wrong legal standard, we

remand to the BIA so that it can apply the correct standard in

the first instance. Ornelas-Chavez, 458 F.3d at 1058. In

applying the correct standard, the BIA should consider

whether the arrest of Singh’s wife constituted a changed cir-

cumstance.

B

[7] The Government may also consider an untimely asy-

lum application if the application was delayed on account of

extraordinary circumstances. 8 U.S.C. § 1158(a)(2)(D). “The

term ‘extraordinary circumstances’ . . . refer[s] to events or

factors directly related to the failure to meet the 1-year dead-

line.” 8 C.F.R. § 1208.4(a)(5). The applicant bears the burden

of showing those circumstances (1) “were directly related to

the alien’s failure to file the application within the 1-year peri-

od” and (2) “the delay was reasonable under the circum-

stances.” Id.

8 C.F.R. § 1208.4(a)(5)(i)-(vi) enumerates six possible cir-

cumstances that might constitute extraordinary circumstances.

Relevant here, one of those is: “The applicant maintained . . .

lawful immigrant or nonimmigrant status . . . until a reason-

able period before the filing of the asylum application . . . .”

8 C.F.R. § 1208.4(5)(iv); see also Dhital v. Mukasey, 532

F.3d 1044, 1049-50 (9th Cir. 2008); Husyev, 528 F.3d at

1181.

Here, the BIA concluded the extraordinary-circumstances

exception did not apply to Singh’s application for two rea-

SINGH v. HOLDER 17069

sons. First, it concluded Singh’s lawful nonimmigrant status

was not “directly related to the filing of his application for

asylum” because “it was the arrest of his wife that triggered

his application and not because he was in lawful nonimmi-

grant status.” Second, it concluded that Singh unreasonably

delayed his application by filing it seven months after the

expiration of his first extension and three months after his sec-

ond extension.

The BIA erred in its analysis. First, the BIA incorrectly

applied the “directly related” requirement to Singh’s circum-

stances. Second, the purported delay fell within the presump-

tively reasonable time period.

1

The BIA concluded Singh’s late application should not be

excused simply because the regulations enumerate mainte-

nance of lawful nonimmigrant status as a possible extraordi-

nary circumstance. Instead, the BIA reasoned, Singh also had

to show that maintenance of nonimmigrant status was “di-

rectly related to the filing of his application for asylum.”

Indeed, applicants must satisfy the “directly related” require-

ment, even when the relevant circumstances are enumerated

in the regulation. Wakkary v. Holder, 558 F.3d 1049, 1057

(9th Cir. 2009);11 In re Y—C—, 23 I. & N. Dec. 286, 288 (BIA

11

It is worth noting that in Wakkary, when we examined 8 C.F.R.

§ 208.4(a)(5)(iv)—the subsection discussing maintenance of lawful immi-

grant or nonimmigrant status—we never questioned whether the appli-

cant’s maintenance of that status was directly related to the reason his

untimely application was delayed. Wakkary, 558 F.3d at 1056-58. Instead,

we apparently assumed that it was. Id.; see also Ramadan, 479 F.3d at 650

(observing that 8 C.F.R. § 208.4(a)(5)(i)-(iv) “lists examples of ‘extraordi-

nary circumstances . . . directly related to the failure to meet the one-year

deadline’ ”). As in Husyev, after we determined the petitioner had main-

tained lawful status, we went on to analyze the reasonableness of the delay

in filing the application without determining whether the delay was

directly related to the petitioner’s lawful status. Wakkary, 558 F.3d at

1058-59; Husyev, 528 F.3d at 1182.

17070 SINGH v. HOLDER

2002) (en banc). However, the BIA misapplied this require-

ment to Singh’s circumstances.

The BIA reasoned that Singh’s lawful nonimmigrant status

was not “directly related to the filing of his application for

asylum” because “it was the arrest of [Singh’s] wife that trig-

gered his application and not because he was in lawful nonim-

migrant status.” The BIA misinterpreted the directly-related

requirement.

[8] Under 8 C.F.R. § 1208.4(a)(5), an applicant has the

burden of showing that the relevant circumstances “were

directly related to the [applicant’s] failure to file the applica-

tion within the 1-year period . . . .” The BIA held Singh to a

different standard. It required him to show that the relevant

circumstances were “directly related to the filing of his appli-

cation for asylum.” This was error. The applicant must show

that the relevant circumstances were directly related to the

reason the application was delayed, not the reason the applica-

tion was eventually filed.

Aside from conflicting with the plain language of the regu-

lation, the problem with the BIA’s standard is that it is virtu-

ally impossible to meet. Consider, for example, the

circumstances enumerated at 8 C.F.R. § 1208.4(a)(5)(i)-(vi):

(i) serious illness or mental physical disability,

(ii) legal disability,

(iii) ineffective assistance of counsel,

(iv) maintenance of lawful immigrant or nonimmi-

grant status,

(v) an improper asylum application, and

SINGH v. HOLDER 17071

(vi) the death or serious illness of the applicant’s

legal representative or a member of the applicant’s

immediate family.

Certainly, these circumstances might delay an application.

However, they would likely never “trigger” the filing of an

application because they do not create a basis for asylum eli-

gibility (unlike, for example, evidence of increased or

renewed persecution). The BIA’s standard, then, misses the

mark because these and other extraordinary circumstances are

not reasons for filing an asylum application—they are reasons

for delaying an application. Indeed, if the BIA’s interpretation

in this case were applied, a petitioner could never qualify for

the exception.

[9] The facts here illustrate precisely the BIA’s flaw. The

BIA concluded Singh did not meet the directly-related

requirement “because it was the arrest of his wife that trig-

gered his application and not because he was in lawful nonim-

migrant status.” Indeed, Singh testified that his wife’s arrest

prompted his application. But this is not the relevant inquiry.

The relevant inquiry is why Singh delayed his application.

[10] Because the BIA erred in its analysis, we must

remand the issue so that the BIA can apply the correct stan-

dard to this inquiry.12 Ornelas-Chavez, 458 F.3d at 1058.

12

Singh testified that he delayed his application because he twice

extended his lawful nonimmigrant status, hoping his family might negoti-

ate a “settlement” or “compromise” for his safe return to India. He testi-

fied that, following his wife’s arrest, he no longer believed that he could

safely return, and he filed his asylum application in short order. On

remand, the BIA should consider whether Singh’s nonimmigrant status

was directly related to the reason his asylum application was delayed,

given that the status allowed him to remain temporarily in the United

States while he waited for his family to negotiate a “settlement” or “com-

promise” for his safe return to India.

17072 SINGH v. HOLDER

2

The BIA also concluded that Singh unreasonably delayed

his asylum application because he filed it seven months after

the first extension of his nonimmigrant visa had expired and

three months after his second extension had expired. How-

ever, the BIA’s finding is not supported by substantial evi-

dence.

[11] We have held that a filing delay of less than six

months after an applicant’s nonimmigrant status has expired

is presumptively reasonable. Husyev, 528 F.3d at 1181; Wak-

kary, 558 F.3d at 1057-58. We based this holding on the pre-

amble to the regulation that enumerates maintenance of

nonimmigrant status as a possible extraordinary circumstance:

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.

65 Fed. Reg. 76121-01 at 76123-24 (emphasis added). We

observed that by communicating the six-month period, “[T]he

agency has taken pains to articulate the ‘reasonable period’

standard that applies to petitioners whose temporary nonim-

migrant status has expired.” Husyev, 528 F.3d at 1181. This

standard is a “meaningful standard.” Id. And, “In the absence

of any special considerations, the six months period suggested

in the preamble to the regulations is not an unreasonable pre-

sumptive deadline.” Id. at 1182; accord Wakkary, 558 F.3d at

1057-58; see also Viridiana, 630 F.3d at 951 (concluding a

three-month delay was reasonable in light of the circum-

stances); cf. Dhital, 532 F.3d at 1049-50 (holding that a two-

SINGH v. HOLDER 17073

year delay in filing an asylum application—without any

explanation for the delay— was unreasonable); Husyev, 528

F.3d 1081-82 (holding that a 364-day delay—again, without

any explanation—was unreasonable).

[12] Singh’s last day of lawful nonimmigrant status was

August 24, 2000. He applied for asylum less than three

months later.13 This time period is presumptively reasonable.

Husyev, 528 F.3d at 1182; Wakkary, 558 F.3d at 1057-58.

This is particularly true given that the Government waited

nearly a year to address Singh’s first extension request and

nearly six months to address his second.

[13] We remand this matter to the BIA so that it may apply

the correct standard when determining whether Singh satisfies

the extraordinary-circumstances exception.

V

The agency applied incorrect legal standards when it deter-

mined that Singh had not established changed or extraordi-

nary circumstances, excusing his untimely application.

Moreover, its determination that Singh failed to file his appli-

cation within a reasonable period of time after his lawful non-

immigrant status expired is not supported by substantial

evidence. Accordingly, we grant Singh’s petition and remand

this matter to the BIA so that it can apply the correct legal

standards in the first instance. Ornelas-Chaez, 458 F.3d at

13

The fact that Singh’s first extension expired seven months prior to

when he filed his application for asylum, while perhaps relevant, is of little

significance. The government granted the extension effective retroac-

tively, curing the technical expiration. Given his second extension, Singh

was a lawful nonimmigrant as of August 24, 2000, and he applied for asy-

lum less than three months later. See Wakkary, 558 F.3d at 1055, 1058

(considering only the most recent of two expired visas when determining

whether the petitioner’s delay in filing his asylum application was a rea-

sonable period of time).

17074 SINGH v. HOLDER

1058. We need not and do not reach any other issues urged

by the parties.

PETITION GRANTED; REMANDED

RAWLINSON, Circuit Judge, concurring in the result:

I agree that this case should be remanded for application of

the correct standard to the determination of whether the peti-

tioner has made a sufficient showing of extraordinary circum-

stances to excuse the untimely filing of his asylum

application. However, I expressly disavow the majority’s

holding that the seven-month lapse between the expiration of

Singh’s visa extension and the filing of his asylum application

is “of little significance . . . .” Majority Opinion, p. 17073

n.13. Indeed, the governing regulation is to the contrary. See

65 Fed. Reg. 76121-01 at 76124 (“Clearly, waiting six months

or longer after expiration . . . of status would not be consid-

ered reasonable . . .) (emphasis added). The majority’s reli-

ance on Wakkary v. Holder, 558 F.3d 1049, 1055, 1058 (9th

Cir. 2009), see Majority Opinion, p. 17073 n.13, is unavail-

ing. In that case, we expressly noted that “Wakkary submitted

his asylum application . . . six months and some days after his

status expired . . .” Wakkary, 558 F.3d at 1057 (emphasis

added). By analogy, Singh submitted his application seven

months after his status expired. A determination of unreason-

ableness in that circumstance is consistent with our precedent.

See Husyev v. Mukasey, 528 F.3d 1172, 1182 (9th Cir. 2008)

(establishing six months as a presumptive deadline).

In sum, I agree that this case should be remanded to the

agency for application of the correct standard to the determi-

nation of whether extraordinary circumstances exist. For that

reason only, I concur in the result.