United States v. 2010-07-22 | 05-72179 | TOJ-CULPATAN V. HOLDER | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 ROGELIO TOJ-CULPATAN, No. 05-72179
Petitioner, Agency No.
v. A076-690-191

ERIC H. HOLDER JR., Attorney ORDER AND
General, AMENDED
OPINION
Respondent. 
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
March 1, 2009—San Francisco, California
Filed December 1, 2009
Amended July 22, 2010
Before: Alex Kozinski, Chief Judge, Procter Hug, Jr. and
Carlos T. Bea, Circuit Judges.
Per Curiam Opinion
10465

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COUNSEL
Lisa M. Calero, Esquire, Robert L. Lewis, Esquire, LAW
OFFICE OF ROBERT L. LEWIS, Oakland, California,
Charles E. Nichol, Esq., LAW OFFICES OF CHARLES E.
NICHOL, San Francisco, California, for the petitioner.
Antoinette Barksdale, Senior Litigating Attorney, U.S.
Department of Justice Civil Division-Appellate, Washington,
DC, Ronald E. LeFevre, OFFICE OF THE DISTRICT
COUNSEL, Department of Homeland Security, San Fran-
cisco, California, Mark Lenard Gross, Esquire, Deputy Chief
Counsel, DOJ - U.S. DEPARTMENT OF JUSTICE, Civil
Rights Division/Appellate Section, Washington, DC, for the
respondent.
ORDER
The opinion filed on December 1, 2009 is hereby
AMENDED. The amended opinion filed today along with this
order replaces it.
Chief Judge Kozinski and Judge Bea have voted to deny
the suggestion for rehearing en banc, and Judge Hug has so
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recommended. All judges voted to deny the petition for panel
rehearing.
The suggestion for rehearing en banc has been circulated to
the full court, and no judge has requested a vote on whether
to rehear the matter en banc. Fed. R. App. P. 35(b).
Petitioner’s petition for panel rehearing and suggestion for
rehearing en banc are denied.
No further filings will be accepted in this closed case.
OPINION
PER CURIAM:
Rogelio Toj-Culpatan, a native and citizen of Guatemala,
petitions for review of an order by the Board of Immigration
Appeals (“BIA”) summarily affirming the Immigration
Judge’s (“IJ”) denial of Petitioner’s requests for asylum, with-
holding of removal, and deferral of removal under the Con-
vention Against Torture. The IJ denied Petitioner’s
application for asylum because he did not file his asylum
application within one year after his entry into the United
States, as required by 8 C.F.R. § 208.4(a)(2), and because he
did not face any “extraordinary circumstances” excusing his
late filing under 8 C.F.R. § 208.4(a)(5).
Petitioner entered the United States in February 1998 and
was immediately detained by the Immigration and Naturaliza-
tion Service. On March 10, 1998, Petitioner appeared before
an IJ and was given extra time to find an attorney. He was
also given a list of attorneys willing to take immigration cases
pro bono. At a hearing on March 25, 1998, Petitioner told the
IJ he “would have problems to go back to my country.” The
IJ asked Petitioner if he would like to apply for political asy-
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lum and Petitioner said he would. The IJ gave him a Form I-
589 asylum application along with the instructions and told
him, with the help of an interpreter, that the application had
to be filled out in English. Petitioner said he understood and
agreed to bring the application to his next hearing on April 16,
1998.
At the April hearing, Petitioner, now represented by coun-
sel, had an asylum application to file. The IJ thanked him for
filling out his application in a timely manner, but rejected the
application because Petitioner filled it out in Spanish instead
of English, as required. See 8 C.F.R. § 208.3(a) (“An asylum
applicant must file Form I-589 . . . in accordance with the
instructions on the form”); Instructions for Form I-589 Appli-
cation for Asylum and for Withholding of Removal at 4
(“answers must be completed in English”). The IJ scheduled
Petitioner’s next hearing for May 14, 1998, and Petitioner
agreed to file the application in English at that time. Counsel
specifically told Petitioner that if Petitioner sent counsel the
application in Spanish, counsel would have it translated into
English for him.
The record does not reflect whether Petitioner failed to
send counsel the application in a timely manner or whether
counsel failed to have the application translated and timely
filed. We note, however, that Petitioner does not raise an inef-
fective assistance of counsel claim.
Petitioner then moved from Arizona to California. Conse-
quently his case was transferred. Still represented by the same
counsel, Petitioner finally filed his asylum application in
English at his first hearing in the new venue on September 7,
1999, approximately 7 months after the one year deadline of
February 1999.
[1] A late filing can be excused if “extraordinary circum-
stances” prevented the alien from filing an asylum application
within one year. 8 C.F.R. § 208.4(a)(5). The applicant bears
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the burden of proving such circumstances existed “[t]o the
satisfaction of the asylum officer, the immigration judge, or
the Board . . . .” 8 C.F.R. § 208.4(a)(2)(i)(B). The IJ and the
BIA rejected Petitioner’s contention that he faced “extraordi-
nary circumstances” preventing him from filing an asylum
application within one year of his arrival into the United
States.
Although we do not have jurisdiction to review the BIA’s
factual determinations regarding Petitioner’s circumstances,
see Dhital v. Mukasey, 532 F.3d 1044, 1049 (9th Cir. 2008)
(per curiam), we do have jurisdiction to review the BIA’s
legal determination that the undisputed facts in Petitioner’s
case do not constitute “extraordinary circumstances.” See 8
U.S.C. § 1252(a)(2)(D); Dhital, 532 F.3d at 1049.
We must decide whether, as a matter of law, Petitioner
faced “extraordinary circumstances” justifying the untimely
filing of his asylum application where: (1) Petitioner does not
speak English; (2) Petitioner was detained for two months in
an immigration detention center; and (3) Petitioner’s case was
transferred after he moved from Arizona to California. We
hold that none of these circumstances, either alone or in com-
bination, constitute “extraordinary circumstances” justifying
the untimely filing of an asylum application, and we deny the
petition.1
The regulation excepting aliens who face “extraordinary
circumstances” from the one year deadline does not define the
term “extraordinary circumstances.” 8 C.F.R. § 208.4(a)(5).
The regulation does list several examples of what could con-
stitute “extraordinary circumstances,” including, but not lim-
ited to, a serious illness, a legal disability, or ineffective
assistance of counsel. Id.; see, e.g., Wakkary v. Holder, 558
1We analyze Petitioner’s application for withholding of removal and
relief under the Convention Against Torture in an accompanying memo-
randum disposition.
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F.3d 1049 (9th Cir. 2009) (maintaining lawful nonimmigrant
status until six months and some days before filing an applica-
tion qualifies as an extraordinary circumstance under 8 C.F.R.
§ 208.4(a)(5)(iv)).2 In this case, however, Petitioner did not
contend in his original brief that any of the extraordinary cir-
cumstances listed in 8 C.F.R. § 208.4(a)(5) apply.
In his petition for rehearing to our court, Petitioner claimed
for the first time that his case fits within 8 C.F.R.
§ 1208.4(a)(5)(v), which provides that extraordinary circum-
stances may include a situation in which an applicant “filed
an asylum application prior to the expiration of the 1-year
deadline, but that application was rejected . . . as not properly
2In Wakkary v. Holder, 558 F.3d 1049 (9th Cir. 2009), we reviewed the
denial of Wakkary’s asylum application as untimely, in light of his having
maintained lawful status until approximately six months before he filed his
application. We found that Wakkary fell within one of the “extraordinary
circumstances” exceptions to the mandatory one-year filing deadline in 8
U.S.C. § 1158(a)(2)(B): He had maintained lawful status “until a reason-
able period before the filing of the asylum application.” 8 C.F.R.
§ 208.4(a)(5)(iv). We remanded for the agency to decide if “Wakkary’s
particular circumstances render his delay . . . ‘reasonable’ under the regu-
lations.” Id. at 1058.
Wakkary discussed a different “extraordinary circumstances” exception
to the mandatory one-year filing deadline than we deal with here. Com-
pare 8 C.F.R. § 208.4(a)(5)(iv) (“The applicant maintained [status] . . .
until a reasonable period before the filing of the asylum application
. . . .”), with 8 C.F.R. § 208.4(a)(5)(v) (“The applicant filed an asylum
application . . . prior to the . . . 1-year deadline, . . . [which] was rejected
by the Service as not properly filed . . . [and] refiled within a reasonable
period thereafter . . . .”). The regulations governing the two exceptions are
different in that unreasonableness is presumed after six months under sec-
tion 208.4(a)(5)(iv). See 65 Fed. Reg. 76,121-01, at 76,124 (Dec. 6, 2000)
(“[W]aiting six months or longer after expiration or termination of status
would not be considered reasonable.”); Husyev v. Mukasey, 528 F.3d
1172, 1181-82 (9th Cir. 2008). Because Wakkary’s delay was “just days
outside” the “presumptive six-month deadline,” we remanded for a deter-
mination of its reasonableness. Wakkary, 558 F.3d at 1058-59. This six-
month presumptive deadline does not apply to section 208.4(a)(5)(v),
which our case addresses.
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filed, was returned to the applicant for corrections, and was
refiled within a reasonable period.” This claim was not sup-
ported by any evidence. It is, of course, Petitioner’s burden to
present evidence to prove his claim that extraordinary circum-
stances exist. 8 C.F.R. § 208.4(a)(2)(i)(B). It’s true that Peti-
tioner filed an application and had it returned to him, but he
failed to refile “within a reasonable period.” Rather, it took
petitioner one year and five months to file a corrected applica-
tion after his initial filing was rejected. Petitioner does not cite
any facts that would justify this long delay in refiling his
application. Although there may be a case where such a delay
would be reasonable, given the absence of any explanation in
this case for the delay, we find that Petitioner’s application
was not refiled within a reasonable period.
[2] Petitioner has failed to meet his burden. There is simply
nothing “extraordinary” about the circumstances listed by
Petitioner that can justify his late filing. First, Petitioner fails
to explain how his inability to speak English is extraordinary
for an alien nor how it prevented him from timely filing an
asylum application in English, especially given that the gov-
ernment makes translators available to immigrants who do not
speak or read English. Petitioner does not contend that cir-
cumstances beyond his control prevented him from receiving
help from a translator. Petitioner also had an attorney who
stated on the record he would help Petitioner file a timely
application in English. Even though Petitioner did not speak
English, his attorney did. Further, we take judicial notice of
the fact that many immigrants who come to this country do
not speak English fluently.3 The inability to speak English
constitutes an ordinary, not extraordinary, circumstance for
3U.S. Census Bureau, 2005-2007 American Community Surveys, avail-
able at http://factfinder.census.gov/home/saff/main.html?_lang=en (follow
“People” hyperlink; then follow “Origins and Language” hyperlink; then
follow “Characteristics Foreign Born Population” hyperlink) (estimating
that 62.2% of the population of people born in a foreign country who are
not U.S. citizens speak English less than “very well”).
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immigrants. Many of these non-English speaking immigrants
timely file asylum applications in English.
[3] Second, Petitioner claims his detention should be con-
sidered an extraordinary circumstance, but he was detained
only from February to March of 1998. Petitioner does not
contend the immigration detention center in any way pre-
vented him from filing the application, and he had counsel
throughout his time there. Petitioner also fails to explain how
his two month detention prevented him from filing during the
months he was not detained.
[4] Last, Petitioner fails to explain how the transfer of his
case prevented him from filing a timely application. He did
not need to wait for a hearing to file an application.4 See 8
C.F.R. § 208.4(b) (“Form I-589, Application for Asylum and
Withholding of Removal, must be filed in accordance with the
instructions on the form”); Instructions for Form I-589 Appli-
cation for Asylum and for Withholding of Removal at 10
(instructing applicants currently in proceedings to file their
application with the Immigration Court without any restric-
tion that they wait for a hearing). Moreover, to qualify as an
exception to the one year rule, Petitioner must prove “that the
circumstances were not intentionally created by the alien
through his or her own action or inaction.” 8 C.F.R.
4Petitioner claims that an asylum application may only be filed in open
court. Petitioner cites 8 U.S.C. § 1158(d)(4), which requires that the “At-
torney General” inform the applicant of the right to counsel and the pen-
alty for filing a frivolous application “[a]t the time of filing an application
for asylum,” and argues that this requirement can only be satisfied if an
application is filed at a hearing. But section 1158(d)(4) requires only that
the “Attorney General” provide the warnings, not that they be provided by
an IJ at a hearing. The I-589 asylum application form includes a warning
about frivolous applications in bold font above the signature line and
requires the applicant to check a box indicating that he understands he has
a right to counsel and has been provided with a list of lawyers. Because
the application form itself provides the requisite warnings, an asylum
application may be filed by mail and still comply with section 1158(d)(4).
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§ 208.4(a)(5). Petitioner caused this particular circumstance to
occur by moving to California from Arizona.
[5] Petitioner has failed to explain how any of these cir-
cumstances prevented him from filing an asylum application
in English within one year of his arrival nor how his delay
was justified. As a result, we hold that these circumstances are
not “extraordinary” as a matter of law. See Dhital, 532 F.3d
at 1050 (holding an alien failed as a matter of law to prove he
faced extraordinary circumstances where he had an unex-
plained delay of 22 months from the date he dropped out of
college and consequently lost his lawful status).
[6] Because Petitioner did not file an asylum application in
English within the one year deadline and no “extraordinary
circumstances” prevented him from filing on time, we deny
his petition for review of the BIA’s order affirming the IJ’s
denial of asylum.
PETITION FOR REVIEW DENIED.
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