Viridiana v. Holder

• Decision Date: 19 July 2011
• Docket Number: No. 06–73335.,06–73335.
• Citation: 646 F.3d 1230
• Parties: Winnie VIRIDIANA, Petitioner,v.Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

646 F.3d 1230

11 Cal. Daily Op. Serv. 9037

2011 Daily Journal D.A.R. 10,841

Winnie VIRIDIANA, Petitioner,

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

No. 06–73335.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 3, 2010.Filed July 19, 2011.

Gihan L. Thomas, Los Angeles, CA, for petitioner Winnie Viridiana.Peter D. Keisler, Assistant Attorney General Civil Division, Richard M. Evans, Assistant Director, Allen W. Hausman, Senior Litigation Counsel Office of Immigration Litigation Civil Division, Washington, D.C., for respondent Eric H. Holder Jr., United States Attorney General.On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A095–304–033.Before: BETTY B. FLETCHER and RICHARD A. PAEZ, Circuit Judges, and DONALD E. WALTER,^* District Judge.

ORDER

Respondent's Petition for Panel Rehearing is GRANTED.

The opinion, reported at Viridiana v. Holder, 630 F.3d 942 (9th Cir.2011), is WITHDRAWN, and is replaced with an opinion filed simultaneously with this order.

No additional Petitions for Rehearing or Rehearing En Banc shall be filed.

The panel retains jurisdiction over future appeals to this court.

OPINIONPAEZ, Circuit Judge:

Winnie Viridiana, an Indonesian citizen of Chinese descent, petitions for review of the Board of Immigration Appeals (“BIA”) order affirming an Immigration Judge's (“IJ's”) denial of her claims for asylum and withholding of removal. We have jurisdiction under 8 U.S.C. § 1252, and we grant the petition and remand.

The principal issue that we address in this appeal is whether the IJ correctly determined that Viridiana's asylum application was untimely. An alien seeking asylum must file an application within one year of arrival in the United States. 8 U.S.C. § 1158(a)(2)(B); 8 C.F.R. § 208.4(a)(2)(i)(A). Viridiana filed her application after she had been in the country for one year and three months. The IJ denied Viridiana's asylum application as untimely because he concluded that she had not established an exception to the one-year filing requirement, and the BIA affirmed. Because the relevant historical facts are undisputed, we have jurisdiction to review the IJ's conclusion that Viridiana's asylum application was untimely without exception. See Ramadan v. Gonzales, 479 F.3d 646, 650 (9th Cir.2007). Conducting such review, we conclude that the agency erred as a matter of law in finding that fraudulent deceit by an immigration consultant cannot constitute an “extraordinary circumstance” that excuses an otherwise untimely asylum application. See 8 U.S.C. § 1158(a)(2)(D); 8 C.F.R. § 208.4(a)(5). We therefore grant the petition and remand for the agency to consider whether the ordeal Viridiana experienced constitutes fraudulent deceit by an immigration consultant and whether she filed her asylum application within a reasonable time after such circumstance, thereby excusing the untimeliness of her application and requiring the agency to consider Viridiana's asylum application on the merits. With respect to Viridiana's claim for withholding of removal, we grant the petition and remand for further consideration in light of our recent decision in Wakkary v. Holder, 558 F.3d 1049 (9th Cir.2009).¹

I. Background

Viridiana is an Indonesian citizen of Chinese descent. Viridiana testified that when she lived in Indonesia, she was harassed, robbed, attacked, and sexually assaulted on account of her Chinese ethnicity. On one occasion, Viridiana was the only Chinese–Indonesian person riding on a bus. Four Indonesian men on the bus targeted only her, dragged her off the bus at knife-point, robbed her, attempted to rape her, and cut her with the knife as she struggled to escape. On another occasion, she was again targeted by Indonesian men while riding public transportation. The men attacked and attempted to rob Viridiana. According to Viridiana, in both instances she was the only Chinese person around and the Indonesian men singled her out due to her Chinese ethnicity. Viridiana testified that she did not report the two incidents to the police because the police were hostile to ethnic Chinese–Indonesians. Following these incidents, Viridiana became depressed, feared leaving her home, and had to be escorted to and from her office by her father.

Viridiana fled Indonesia and entered the United States on January 30, 2001, with a visitor's visa. Her visa authorized her to remain in the country until July 29, 2001. In May 2001, she consulted with Benny Muaja of BM & Associates (“BM”), an immigration consultant and court-certified Indonesian interpreter, to assist her in filing an application for extension of her nonimmigrant status. She also sought his assistance in filing an I–589 application for asylum and withholding of removal. Viridiana learned of BM from an advertisement in a local Indonesian magazine. Viridiana paid Muaja $1300 (in cash installments) for his assistance in filing her visa extension and asylum applications. Viridiana understood that Muaja was not a lawyer and that BM was not a law firm.

In August 2001, Muaja, acting on behalf of Viridiana, submitted an application to extend Viridiana's visa. In December 2001, the Immigration and Naturalization Service denied her application.

In July 2001, Viridiana began calling Muaja to inquire about the status of her asylum application. In her declaration submitted at the hearing before the IJ, she stated:

Initially, Mr. Muaja would not return my calls. Later, when confronted, Mr. Muaja did not answer my questions directly about my request for proof of filing. Whenever I called, Mr. Muaja would make an appointment, but when I appeared for the appointment, Mr. Muaja would say that he had not time to see me. This happened five or six times from July 2001 until March 2002.

Despite Viridiana's frequent calls and numerous appointments, Muaja never filed an application for asylum on Viridiana's behalf.

In March 2002, Viridiana contacted the law offices of Warmuth & Niu. In April 2002, with the aid of her new Warmuth & Niu attorney, Viridiana filed her asylum application, which included a request for withholding of removal and relief under the Convention Against Torture (“CAT”). By that point, Viridiana had been in the country for one year and three months, and her asylum application was three months late.

On July 12, 2002, the Immigration and Naturalization Service issued to Viridiana a Notice to Appear for removal proceedings in immigration court. The IJ held a hearing on her application for asylum and other forms of relief. Viridiana testified at the hearing. On October 10, 2003, the IJ delivered his oral decision denying Viridiana's asylum application as untimely. Because the one-year time bar does not apply to claims for withholding of removal and relief under CAT, the IJ proceeded to address those claims on the merits. With respect to both of these claims, however, the IJ found that Viridiana failed to meet her burden of proof to warrant relief. Accordingly, the IJ denied her application for withholding of removal and relief under CAT. Viridiana filed a timely appeal to the BIA. In June 2006, the BIA adopted and affirmed the IJ's decision. Viridiana timely petitioned for review.

II. Standard of Review

The BIA adopted and affirmed the IJ's decision pursuant to Matter of Burbano, 20 I. & N. Dec. 872, 874 (B.I.A.1994). “[W]here the BIA cites its decision in Burbano and does not express disagreement with any part of the IJ's decision, the BIA adopts the IJ's decision in its entirety.” Abebe v. Gonzales, 432 F.3d 1037, 1040 (9th Cir.2005) (en banc). We therefore review the IJ's decision directly. Id.

The proper standard of review in immigration proceedings depends on the nature of the decision under review. See Manzo–Fontes v. INS, 53 F.3d 280, 282 (9th Cir.1995). Factual determinations are reviewed for substantial evidence. See Camposeco–Montejo v. Ashcroft, 384 F.3d 814, 818 (9th Cir.2004). Under this deferential standard, the IJ's determination must be upheld unless the petitioner can show that a reasonable fact finder would have been compelled to reach a different conclusion. INS v. Elias–Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). Questions of law are reviewed de novo. Rodriguez–Lariz v. INS, 282 F.3d 1218, 1222 (9th Cir.2002). The IJ did not make an explicit adverse credibility finding, and therefore we take Viridiana's testimony as true and further corroboration is not required. See Kataria v. INS, 232 F.3d 1107, 1113–14 (9th Cir.2000).

III. Discussion

As noted above, under 8 U.S.C. § 1158(a)(2)(B), an alien seeking asylum must file an application within one year of arrival in the United States. See 8 C.F.R. § 208.4(a)(2)(i)(A). There are two exceptions to this rule: late applications may be considered “if the alien demonstrates 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 an application.” 8 U.S.C. § 1158(a)(2)(D) (alterations added); 8 C.F.R. § 208.4(a)(4), (5). Viridiana argues that she is eligible for relief under the later exception, “extraordinary circumstances,” due to the mishandling of her asylum application by an immigration consultant. The IJ construed Viridiana's argument as a claim of ineffective assistance of counsel and determined that although ineffective assistance of counsel is one of the enumerated “extraordinary circumstances,” which will excuse the untimely filing of an asylum application, see 8 C.F.R. § 208.4(a)(5)(iii), Viridiana failed to demonstrate that she qualified for the exception.

The issue of whether a petitioner has demonstrated “extraordinary circumstances” warranting equitable tolling is a mixed question of fact and law and, therefore, subject to our review. See Husyev v. Mukasey, 528 F.3d 1172, 1181 (9th Cir.2008) (holding that petitioner's...