Gasparyan v. Holder
| Decision Date | 20 February 2013 |
| Docket Number | No. 08–73613.,08–73613. |
| Citation | 707 F.3d 1130 |
| Parties | Zoya GASPARYAN, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
OPINION TEXT STARTS HERE
Robert B. Jobe, Law Office of Robert B. Jobe, San Francisco, CA, for Petitioner.
Benjamin Mark Moss and Douglas E. Ginsburg, United States Department of Justice, Civil Division, Office of Immigration Litigation, Washington D.C., for Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A099–824–314.
Before: J. CLIFFORD WALLACE, JEROME FARRIS, and JAY S. BYBEE, Circuit Judges.
Zoya Gasparyan, a native and citizen of Armenia, petitions for review of the Board of Immigration Appeal's denial of her asylum application as time-barred. Gasparyan originally entered the United States on a six-month visa, which she overstayed. More than a year later, she applied for asylum, withholding of removal, and protection under the Convention Against Torture. An immigration judge found her eligible for withholding of removal and CAT protection, but denied her asylum application for failure to meet the one-year filing deadline. See8 U.S.C. § 1158(a)(2)(B). Gasparyan appealed the denial of asylum, arguing that her untimely application should be excused because she suffered from a mental illness that constitutes an extraordinary circumstance pursuant to 8 U.S.C. § 1158(a)(2)(D) and 8 C.F.R. § 1208.4(a)(5). The Board of Immigration Appeals denied the appeal. Although Gasparyan asserted that her delay in filing was due to mental health issues, the Board concluded that the primary reason for the delay was Gasparyan's lack of funds and inability to speak English.
Gasparyan appeals the Board's adverse extraordinary circumstances determination. Additionally, she contends that the Board erred by failing to analyze her extraordinary circumstances claim using the appropriate “three-part test” derived from 8 C.F.R. § 1208.4(a)(5). To the extent that Gasparyan challenges the merits of the Board's extraordinary circumstances determination, we dismiss the petition for lack of jurisdiction because the underlying facts are disputed. Further, the Board did not err in its application of the regulations and we therefore reject Gasparyan's claim to the contrary.
Gasparyan was born in Armenia and lived there throughout her childhood and adolescence. At the age of 19 she was sexually assaulted by a friend, whom she married shortly thereafter to avoid shaming her family. During their marriage, Gasparyan's husband repeatedly abused her.
On October 24, 2004, Gasparyan fled Armenia and entered the United States on a six-month visa. Initially she lived in Foster City, California with Gayane Topalian, a family friend and former neighbor in Armenia. She also lived in Palmdale, California with other family friends and distant relatives for short periods of time. Topalian wrote a letter to the INS on Gasparyan's behalf asking for an extension of her visa, but INS denied the request on August 24, 2005. Gasparyan planned for her sister to send money and come visit so she “could hire a lawyer and deal with [her] immigration status.” However, Gasparyan's sister had a car accident and could not come or send money. When asked during her asylum hearing what she was thinking after receiving the denial of the extension, Gasparyan responded, “I was waiting for money to come so I could apply.”
Gasparyan testified before an immigration judge that after her arrival in the United States she felt troubled and unsafe. She suffered from nightmares and other psychological trauma related to the domestic violence she endured. While living near Los Angeles, Gasparyan feared that her whereabouts might be leaked to her husband, given the large Armenian community in the area. Gasparyan spoke only Armenian and Russian and thus was unable to communicate with anyone outside of the Armenian community. She rarely left the houses where she lived, though she did regularly attend an Armenian church.
In August 2005, the brother and sister-in-law of Gasparyan's husband invited her to live with them in San Mateo, California. Her previous host never asked her to leave, but Gasparyan agreed to move when her in-laws assured her that they would not tell her husband of her location. Gasparyan testified that her mental health quickly deteriorated because the trauma she suffered as a consequence of the domestic violence resurfaced while living with her husband's family. She repeatedly asked her in-laws to help her normalize her immigration status. However, they did not help and she did not apply for asylum during the year she lived with them.
In August 2006, immigration officials took Gasparyan and her in-laws into custody because of an immigration problem that her in-laws had. Thereafter, the Immigration and Naturalization Service initiated removal proceedings against Gasparyan, during which she applied for asylum, withholding of removal, and relief under the Convention Against Torture.
During the hearing before the immigration judge, Gasparyan called as a witness Dr. Paul Good, a clinical and forensic psychologist. Dr. Good had examined Gasparyan and diagnosed her with an anxiety disorder and testified that she had symptoms of post traumatic stress disorder stemming from the abuse she suffered at the hands of her husband. Dr. Good testified that pursuing a complex application process might be difficult for Gasparyan due to her mental disorders. He also testified that Gasparyan had informed him that she delayed filing for asylum because of lack of money, her inability to speak English, and a sense of inhibition while living with her brother-in-law.
The immigration judge found that Gasparyan was eligible for withholding of removal and CAT protection based on the domestic violence she suffered. However, the immigration judge denied her application for asylum because she did not file within the one-year deadline and she was not so severely mentally disabled as to establish extraordinary circumstances excusing the untimely filing. The immigration judge held that “there [was] sufficient evidence in this record to establish that respondent was able to make decisions for herself” and that the reason she failed to file her application was “because she did not have the requisite funds to pay for the services of counsel to help her file that application.”
Gasparyan appealed the denial of asylum. The Board dismissed her appeal. In so doing, the Board reasoned, inter alia, that although the forensic psychologist testified that Gasparyan might have trouble with a complex application process, he “earlier indicated that her primary reasons for not applying for asylum were a lack of funds and her inability to speak English.” Thus, the Board held that Gasparyan failed to present extraordinary circumstances excusing her untimely asylum application.
Before addressing the merits of Gasparyan's petition, we must first determine whether we have jurisdiction to review the Board's extraordinary circumstances determination. Under the REAL ID Act of 2005, Pub.L. No. 109–13, div. B, § 106(a)(1)(A)(iii), 119 Stat. 231, 310 (2005) (), we have jurisdiction to review an extraordinary circumstances determination only with regard to constitutional claims and questions of law. See8 U.S.C. § 1252(a)(2)(D); Husyev v. Mukasey, 528 F.3d 1172, 1178–79 (9th Cir.2008). Questions of law include pure questions of law as well as “mixed questions of law and fact.” Husyev, 528 F.3d at 1178–79. Mixed questions of law and fact refer to the application of law to “undisputed facts.” Id.
To excuse her untimely asylum application, Gasparyan must establish that her psychiatric problems constituted extraordinary circumstances “directly related” to her delay in filing for asylum within the meaning of 8 U.S.C. § 1158(a)(2)(D) and 8 C.F.R. § 1208.4(a)(5). See Singh v. Holder, 656 F.3d 1047, 1054–56 (9th Cir.2011) ().
Gasparyan contends that “it can hardly be disputed” that her psychiatric problems were directly related to her failure to file for asylum within the one-year deadline. The record, however, establishes otherwise. Gasparyan testified before the immigration judge that she delayed filing for asylum not because of her psychiatric problems, but because she lacked the money to hire an attorney and initiate the process. Similarly, Dr. Good testified that Gasparyan had explained to him that her delay was due to lack of funds and the language barrier, in addition to psychological trauma. At the close of the hearing, Gasparyan's counsel asserted that her mental disability was the cause of the delay, whereas the government argued that the primary reason for the delay was monetary. Thus, the record reveals that the relation between Gasparyan's mental disabilities and her failure to meet the one-year deadline was far from an “admitted or established” historical fact. Husyev, 528 F.3d at 1178.
The Board denied Gasparyan's extraordinary circumstances claim by resolving the underlying factual dispute and finding that her primary reasons for delaying her asylum application were lack of money and inability to speak English. Our jurisdiction to review mixed questions of law and fact is limited to...
To continue reading
Request your trial
- Asbury v. Brown
- Ticer v. Ojeda
- Caetano v. Bd. of State & Cmty. Corr.
- Holt v. Gardner, Case No.: 1:19-cv-00772-LJO-SAB (PC)