Taslimi v. Holder

• Decision Date: 04 January 2010
• Docket Number: No. 05-71006.,05-71006.
• Citation: 590 F.3d 981
• Parties: Azra TASLIMI, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

590 F.3d 981 Azra TASLIMI, Petitioner,
v.
Eric H. HOLDER, Jr., Attorney General, Respondent. No. 05-71006. United States Court of Appeals, Ninth Circuit. Argued and Submitted December 10, 2008. Filed January 4, 2010.

[590 F.3d 982]

Haleh Mansouri, Esq., Los Angeles, CA, for the petitioner.

Stuart Nickum, Department of Justice Trial Attorney, Washington, DC, for the respondent.

Before: HARRY PREGERSON, D.W. NELSON and DAVID R. THOMPSON, Circuit Judges.

PREGERSON, Circuit Judge:

Azra Taslimi ("Taslimi") petitions for review of a decision of the Board of Immigration Appeals (the "BIA") finding her statutorily ineligible for asylum. We grant the petition for review, reverse and remand to the BIA to determine whether, in an exercise of discretion, Taslimi merits a grant of asylum under 8 U.S.C. § 1158(b).

FACTS AND PROCEDURAL HISTORY¹

Taslimi is a native and citizen of Iran. She entered the United States on a visitor visa on or about October 3, 1992, with authorization to remain until October 3, 1993. She has not left the United States since her entry.

Before coming to the United States, Taslimi was Muslim. In the United States, however, Taslimi began attending Christian churches. Beginning in June 2002, Taslimi attended prayer services and Bible study at the New Beginnings Christian Fellowship Church of God ("New Beginnings"). On September 5, 2002, Taslimi approached New Beginnings' pastor and converted to Christianity. Two members of the church and the pastor witnessed Taslimi's conversion ceremony.

Following her conversion, Taslimi had a conversation with the pastor of New Beginnings, Pastor Ritchie, in which he encouraged her to legalize her status and helped her find an attorney. Before learning of asylum, Taslimi did not know that she might apply for legal status based on her religious conversion. Taslimi discussed her legal status with others, and learned of asylum in March or April of 2003. She applied for asylum on April 2, 2003, a few days short of seven months after her religious conversion.

Taslimi did not apply for asylum immediately after her conversion because she wanted to be sure that it was going to be a life-long decision.² Pastor Ritchie testified

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that he viewed Taslimi's period of waiting after her conversion and before applying for asylum to be healthy, because it "demonstrated the genuineness of her commitment."

An asylum officer referred Taslimi's application for asylum to immigration court for adjudication. During the hearing on the merits of her asylum application in immigration court, Taslimi explained that she would fear for her life if she were removed to Iran, but that she is committed to practicing Christianity, even if removed. In addition to Taslimi and Pastor Ritchie, two members of the New Beginnings Church testified at the hearing on Taslimi's behalf.³

Prior to rendering his oral decision, the IJ indicated that he intended to grant Taslimi withholding of removal and protection under the Convention Against Torture, but to deny Taslimi's application for asylum because she failed to apply for asylum within a reasonable period following her religious conversion. In light of his intent to grant withholding of removal, the IJ asked Taslimi's counsel whether she wanted to reconsider the request for voluntary departure. After briefly going off the record, Taslimi's counsel withdrew the request for voluntary departure and the IJ rendered his oral decision.

The IJ found that Taslimi was eligible for withholding of removal pursuant to 8 U.S.C. § 1231(b)(3), because Taslimi showed that it was more likely than not that her life or freedom would be threatened in Iran on account of her religion. The IJ also found Taslimi eligible for protection under the Convention Against Torture, finding Taslimi met her burden of establishing that it was more likely than not that she would be tortured if returned to Iran.

The IJ denied Taslimi's application for asylum, finding it to be time-barred. Taslimi converted to Christianity on September 5, 2002, and filed her asylum application on April 2, 2003. The IJ found that Taslimi's September 5, 2002, conversion constituted "changed circumstances" materially affecting her eligibility for asylum, which would permit her to file for asylum more than one year after her entry into the United States. See 8 C.F.R. § 208.4(a)(2). The IJ further found, however, that Taslimi failed to apply for asylum within a "reasonable period" following the change in circumstances. See 8 C.F.R. § 208.4(a)(4)(ii).⁴ The IJ reasoned that Taslimi had lived in the United States since 1992 and had "ample opportunity to avail herself of resources regarding the laws of asylum." The IJ reasoned that Taslimi did not testify that she was unaware of asylum during the period between her conversion and filing for asylum, when Taslimi was waiting to see whether her conversion would hold. The IJ observed that the Pastor "did not testify that [Taslimi] discussed asylum with him at all. The Pastor only discussed the need to resolve [Taslimi's] immigration problem shortly before the baptism, but never dissuaded her or informed her of the asylum procedure." Finding no extenuating or

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special circumstances that would make the delay in filing for asylum reasonable, the IJ found that Taslimi failed to show that she qualified for an exception to the one-year filing deadline. Accordingly, the IJ found Taslimi statutorily ineligible for asylum. He further ordered her removed from the United States before granting her withholding of removal and protection under the Convention Against Torture. The BIA summarily affirmed the IJ's decision pursuant to 8 C.F.R. § 1003.1(e)(4).

Taslimi timely petitioned this court for review. On appeal, she argues that: (1) the IJ erred by concluding that she failed to file her asylum application within a reasonable period of time following changed circumstances affecting her eligibility for asylum; and (2) the IJ erred by concluding that he was required to enter an order of removal before granting Taslimi withholding of removal.

DISCUSSION I.

Asylum-seekers have one year from the time of their entry into the United States to file an application for asylum. 8 U.S.C. § 1158(a)(2)(B). This one year filing deadline is subject to two statutory exceptions. An asylum seeker may apply for asylum even if it is more than one year after that person's entry by demonstrating "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." 8 U.S.C. § 1158(a)(2)(D) (emphases added).

An applicant demonstrating changed circumstances must further demonstrate that the application was filed "within a reasonable period given those `changed circumstances.'" 8 C.F.R. § 208.4(a)(4)(ii). Similarly, an applicant demonstrating "extraordinary circumstances" must show that the application was filed "within a reasonable period given those circumstances." 8 C.F.R. § 208.4(a)(5).

The IJ found, and the government does not dispute, that Taslimi's conversion to Christianity constituted changed circumstances within the meaning of 8 U.S.C. § 1158(a)(2)(B). Taslimi disputes the IJ's finding that she failed to file her application for asylum within a "reasonable period" given those changed circumstances.

II.

We must first consider whether we have jurisdiction to review the IJ's determination that Taslimi failed to file her application within a "reasonable period" given her changed circumstances. "[W]e `have jurisdiction to determine whether jurisdiction exists.'" Flores-Miramontes v. INS, 212 F.3d 1133, 1135 (9th Cir.2000) (quoting Aragon-Ayon v. INS, 206 F.3d 847, 849 (9th Cir.2000)). We review our own jurisdiction de novo. Ruiz-Morales v. Ashcroft, 361 F.3d 1219, 1221 (9th Cir. 2004) (citing Rosales-Rosales v. Ashcroft, 347 F.3d 714, 716 (9th Cir.2003)). Based on our decisions in Ramadan v. Gonzales, 479 F.3d 646 (9th Cir.2007) (per curiam) and Husyev v. Mukasey, 528 F.3d 1172 (9th Cir.2008), we hold that we have jurisdiction to consider this question.

8 U.S.C. § 1158(a)(3) provides that "[n]o court shall have jurisdiction to review any determination of the Attorney General" regarding changed or extraordinary circumstances. Section 106 of the REAL ID Act of 2005, however, restored jurisdiction over "constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals." Pub.L. No. 109-13, Div. B (2005), codified at 8 U.S.C. § 1252(a)(2)(D).

Accordingly, even though 8 U.S.C. § 1158(a)(3) purports to strip our jurisdiction over determinations related to changed or extraordinary circumstances, 8

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U.S.C. § 1252(a)(2)(D) restored jurisdiction to the extent that determinations concerning changed or extraordinary circumstances involve constitutional claims or questions of law.

In Ramadan we held that "`questions of law,' as the phrase is used in [§ 1252(a)(2)(D)], extends to questions involving the application of statutes or regulations to undisputed facts, sometimes referred to as mixed questions of fact and law." 479 F.3d at 650. In that case we held that we have jurisdiction to review as a mixed question of fact and law an IJ's determination that the petitioner failed to demonstrate "changed circumstances" allowing her to file for asylum more than one year after her arrival in the United States. 479 F.3d at 650.⁵

The factual basis of Ramadan's claim was undisputed, and our court "only review[ed] whether the IJ appropriately determined that the facts did...