Veronica Adrian v. ERIC H. HOLDER JR., Attorney General

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VERONICA ADRIAN,
Petitioner,
v.
ERIC H. HOLDER JR., Attorney General,
Respondent.
Nos. 05-74977, 05-76059
Agency No. A079-540-913
MEMORANDUM *
On Petitions for Review of an Order of the
Board of Immigration Appeals
Submitted April 6, 2010**
Pasadena, California
Before: FERNANDEZ, SILVERMAN, and GRABER, Circuit Judges.
Veronica Adrian petitions for review of (1) the Board of Immigration
Appeals’ affirmance of the immigration judge’s denial of Adrian’s application for
asylum and request for withholding of removal and CAT relief (No. 05–74977)
and (2) the BIA’s denial of her motion to reconsider (No. 05–76059). We have
FILED
APR 08 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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jurisdiction pursuant to 8 U.S.C. § 1252. We grant in part Adrian’s petition for
review in No. 05–74977 and remand for further proceedings, and we deny as moot
her petition in No. 05–76059.
We review de novo the BIA’s determination of purely legal issues. Shrestha
v. Holder, 590 F.3d 1034, 1048 (9th Cir. 2010). We review for substantial
evidence the BIA’s denial of asylum, withholding of removal, and CAT relief.
Ahmed v. Keisler, 504 F.3d 1183, 1191 (9th Cir. 2007).
The BIA ruled that Adrian’s application for asylum was not timely filed and
that its tardiness was not excused by extraordinary circumstances. As an initial
matter, we have jurisdiction to review the BIA’s determination because the facts
are undisputed and a pure question of law is presented. 8 U.S.C. § 1252(a)(2)(D);
Husyev v. Mukasey, 528 F.3d 1172, 1179–81 (9th Cir. 2008).
Adrian’s claim was that she was defrauded by the Chinese Indonesian
American Society (“CIAS”), which is not a law firm or an attorney. The CIAS
agreed to file Adrian’s application for $2000, confirmed receipt of her down
payment, and responded to Adrian’s repeated inquiries as to the status of her
application with assurances that it would be filed on time. Nonetheless, the
application was filed approximately two months late.

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The BIA based its determination that extraordinary circumstances did not
excuse Adrian’s late filing solely on Adrian’s failure to comply with the procedural
requirements for bringing ineffective assistance of counsel claims under 8 C.F.R. §
1208.4(a)(5)(iii). But Adrian did not allege ineffective assistance of counsel; she
alleged that she was defrauded by non-lawyers. Section 1208.4(a)(5)(iii) does not
strictly fit this situation. Therefore, the BIA should have considered whether the
circumstances as a whole were sufficiently extraordinary, rather than requiring
strict compliance with the regulation.
We therefore grant in part Adrian’s petition in No. 05–74977 and remand to
the BIA to reconsider Adrian’s claim of extraordinary circumstances. INS v.
Ventura, 537 U.S. 12, 17 (9th Cir. 2002) (per curiam).
We also grant Adrian’s petition with respect to withholding of removal and
remand for the BIA to consider Adrian’s membership in a "disfavored group" in
light of our decision in Wakkary v. Holder, 558 F.3d 1049, 1062–65 (9th Cir.
2009), which had not been decided at the time of the BIA’s decision. We deny
Adrian’s petition as it relates to CAT relief because there is no evidence in the
record that Adrian is likely to be tortured if she returns to Indonesia. Finally, we
deny as moot Adrian’s petition for review of the BIA's denial of her motion for
reconsideration.

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Petition for review in No. 05–74977 is GRANTED IN PART, DENIED IN
PART; REMANDED. Petition for review in No. 05–76059 is DENIED. Each
party shall bear its own costs on appeal.

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