Tamang v. Eric H. Holder Jr

• Decision Date: 16 March 2010
• Docket Number: No. 08-73550.,08-73550.
• Parties: Pan Bahadur TAMANG, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

598 F.3d 1083

Pan Bahadur TAMANG, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent.

No. 08-73550.

United States Court of Appeals Ninth Circuit.

Submitted Dec. 10, 2009.^*

Filed March 16, 2010.

COPYRIGHT MATERIAL OMITTED

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Patrick Cantor, Buttar & Cantor LLP Tukwila, WA, for petitioner, Pan Bahadur Tamang.

Tony West, Acting Assistant Attorney General, Civil Division, Terri J. Scadron Assistant Director, and Kathryn Deangelis, Trial Attorney, Office of Immigration Litigation, for respondent, Eric H. Holder Jr.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A098-840-654.

Before RONALD M. GOULD and RICHARD C. TALLMAN, Circuit Judges and ROGER T. BENITEZ, ^** District Judge.

BENITEZ, District Judge:

Petitioner Pan Bahadur Tamang petitions for review of the Board of Immigration Appeals' ("BIA's") order dismissing his appeal of an immigration judge's ("IJ's") denial of his application for asylum, withholding of removal, and protec-tion under the United Nations Convention Against Torture ("CAT"). We dismiss the petition for review as to Tamang's asylum claim on the grounds that the claim was untimely. As to Tamang's remaining claims, we have jurisdiction under 8 U.S.C § 1252, and we deny the petition for review.

BACKGROUND

Tamang is a native and citizen of Nepal. On July 18, 1999, Tamang entered the United States on a visitor visa. When Tamang's visa expired on January 17 2000, Tamang remained in, and at all relevant times has remained in, the United States. More than five years later, on August 12, 2005, Tamang filed an application ("Application") for asylum, withholding of removal, and protection under CAT.

Tamang's Application includes a declaration stating, among other things, that Tamang's family was threatened by Maoists and Maoists broke Tamang's brother's leg during an altercation. This altercation apparently took place in 2002, i.e., three years after Tamang arrived in the United States. The record shows Tamang's brother entered the United States on June 18, 2002 and was later granted asylum in December 2005.

On January 23, 2007, a hearing was held on Tamang's Application. At the hearing, Tamang conceded he failed to file a timely petition for asylum. Tamang testified he did not file an earlier application because an attorney told him it was not necessary since Tamang was not personally attacked. On cross-examination, Tamang testified that he got this advice from a "friend, " whose name he did not know, and that he recently decided to file the Application because his brother obtained asylum in an earlier proceeding.

Tamang also testified that his family had been active in Nepalese politics: Tamang, his brother, and his father were members of the Nepali Congress Party, and Tamang's father was the president of the Village Development Committee. Tamang testified that, after the altercation with Maoists in 2002, his parents moved to India. However', in September 2006, Tamang's parents returned to Nepal and have not had problems with Maoists since their return. Tamang also testified that he has not been personally harmed by Maoists and, in fact, he has had no contact with Maoists at all. Tamang also conceded that the Nepali Congress Party became the head of government in 2006 and a ceasefire was declared with the Maoists.

Nevertheless, Tamang testified he cannot safely return to Nepal because he believes Maoists are looking for him.

At the conclusion of the hearing, the IJ issued an order denying all relief sought by Tamang. Specifically, the IJ found that Tamang's asylum application was untimely and failed to demonstrate changed or extraordinary circumstances excepting the application from the one year statute of limitation. The IJ found incredible Tamang's belief that he did not have to file his application within the one-year period and that he had been advised against filing by an attorney. According to the IJ, Tamang is a relatively well-educated individual who could be expected to seek out further advice, especially given his fear of persecution and the knowledge of his family's suffering as early as 2002, i.e., three years before Tamang filed his asylum application.

The IJ further determined that Tamang had not established past persecution in Nepal, noting that Tamang's brother had "suffered significant physical violence, " but that Tamang was in the United States at that time and had not made "any claim that he himself had any interaction with them." The IJ further noted that even Tamang's family had returned to Nepaland have not had any interaction with Maoists since 2002.

The IJ also found that there had been a change in country conditions that mitigated against any fear of future persecution, especially in light of Tamang's political party being the new majority party in the Nepalese government. The IJ further noted that asylum seekers such as Tamang "can be expected to relocate to a community elsewhere in their country, " just as his family had done.

The IJ also denied Tamang's application for CAT protection, finding Tamang had not demonstrated a risk of torture by the government if he were to return to Nepal and noting that Tamang's own political party now forms the government in Nepal.

On July 31, 2008, the BIA affirmed the IJ's decision and dismissed Tamang's appeal. The BIA adopted the IJ's decision in its entirety. This timely appeal ensued.

DISCUSSION

In upholding the IJ's denial of Tamang's Application, the BIA "adopt[ed] and affirmfed] the Immigration Judge's decision, " citing Matter of Burbano, 20 I & N. Dec. 872, 874 (BIA 1994). We, therefore, look through the BIA's decision and treat the IJ's decision as the final agency decision for purposes of this appeal. Gonzalez v. INS, 82 F.3d 903, 907 (9th Cir. 1996).

[2, 3] We review the IJ's factual findings for substantial evidence. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). Under the substantial evidence test, we must uphold the IJ's findings, "if supported by reasonable, substantial and probative evidence on the record considered as a whole." Id. (internal quotation marks omitted).

We review de novo questions of law and legal conclusions. Monjaraz-Munoz v. INS, 327 F.3d 892, 895 (9th Cir.2003).

We review separately the requests by Tamang for asylum, withholding of removal and CAT protection.

I. ASYLUM

An asylum application must be filed within one year of the petitioner's arrival in the United States. 8 U.S.C. § 1158(a)(2)(B). One exception, however, is where the petitioner demonstrates "extraordinary circumstances relating to the delay." Id. § 1158(a)(2)(D). The Code of Federal Regulations sets forth several categories of "extraordinary circumstances" for purposes of asylum relief. 8 C.F.R. § 1208.4(a)(5)(i)-(vi). The category relevant here is "ineffective assistance of counsel." Id. § 1208.4(a)(5)(iii). Tamang appeals the IJ's finding that he failed to demonstrate ineffective assistance of counsel.

A. JURISDICTION

As a threshold matter, we must consider whether we have jurisdiction to review the IJ's finding. The short answer is yes.

We address this issue because two statutory provisions provide that no court has jurisdiction to review a determination of the IJ or BIA relating to the one-year bar or the exceptions for changed or extraordinary circumstances thereunder. See 8 U.S.C. §§ 1158(a)(3) and 1252(a)(2)(B). In 2005, however, Congress passed the REAL ID Act which restored our jurisdiction, but only for those decisions invoking constitutional claims or questions of law. Id. § 1252(a)(2)(D); see also Husyev v Mukasey, 528 F.3d 1172, 1178-79 (9th Cir. 2008). We must, therefore, determine whether Tamang's ineffective assistance claim involves a question of law.

"Questions of law, " as that phrase is used under the REAL ID Act, extends to questions involving the application of statutes or regulations to undisputed facts, also known as mixed questions of fact and law. Ramadan v. Gonzales, 479 F.3d 646, 650 (9th Cir.2007); see also PullmanStandard v. Swint, 456 U.S. 273, 289-90 & n. 19, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982) (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 standard, or to put it another way, whether the rule of law as applied to the established facts is or is not violated").

Ninth Circuit authority also provides that the "ineffective assistance" prong of the extraordinary circumstances exception is treated as a mixed question of law and fact, as long as the relevant underlying facts are not disputed. See, e.g., Ghahremani v. Gonzales, 498 F.3d 993, 999 (9th Cir.2007) (noting same in the context of an appeal of the BIA's denial of a motion to reopen deportation proceedings). However, until now, there have been no published decisions specifying which underlying facts cannot be disputed for purposes of this determination.

At least one Ninth Circuit case has held albeit under a different category of extraordinary circumstances, that jurisdiction existed where the following facts were not disputed: the date of petitioner's arrival; the expiration of a petitioner's legal status; and the petitioner's application for asylum. Husyev, 528 F.3d at 1179 (finding that petitioner's extraordinary circumstances exception based on the "reasonable period" prong was a mixed question of law and fact because these same facts were not disputed). Although not specifically stated, those facts pertain to the elements necessary to prove the extraordinary circumstances category at issue in that case, i.e., that the petitioner had maintained lawful immigration status until a reasonable time before filing his or her asylum application per 8 C.F.R. § 1208.4(a)(5)(iv). Although the reasonable period category is not at issue in this case, applying the Husyev concept here, it is clear Tamang's ineffective...