Al Ramahi v. Holder

• Decision Date: 06 August 2013
• Docket Number: No. 12–70628.,12–70628.
• Parties: Osama Jamal Haroun AL RAMAHI; Nisreen Sami Al Sharif, Petitioners, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

725 F.3d 1133

Osama Jamal Haroun AL RAMAHI; Nisreen Sami Al Sharif, Petitioners,

v.Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 12–70628.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted June 6, 2013.

Filed Aug. 6, 2013.

Vicky Dobrin and Hilary Han (argued), Dobrin & Han, PC, Seattle, WA, 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.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency Nos. A088–735–008, A088–735–009.

Before: RONALD LEE GILMAN,^*M. MARGARET McKEOWN, and SANDRA S. IKUTA, Circuit Judges.

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 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.

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 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, see8 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. 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.

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...