Snezhana Jakupi v. LORETTA E. LYNCH, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SNEZHANA JAKUPI,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
No. 12-73035
Agency No. A099-045-117
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 18, 2015**
San Francisco, California
Before: KLEINFELD, WARDLAW, and PAEZ, Circuit Judges.
Snezhana Jakupi, a native and citizen of Albania, petitions for review of the
decision of the Board of Immigration Appeals (“BIA”) dismissing her appeal from
the Immigration Judge’s (“IJ”) denial of her applications for asylum and
FILED
JAN 13 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

-- 1 of 5 --

withholding of removal. We grant the petition and remand to the BIA for further
proceedings.
1. Jakupi arrived in the United States in March 2004, and she timely filed an
asylum application in June 2004. After the agency rejected her
application as incomplete, Jakupi hired an immigration consultant, who ultimately
submitted a complete application in August 2005. The IJ denied Jakupi’s
application for asylum because she had failed to file within a year of arrival in the
United States or demonstrate extraordinary circumstances sufficient to excuse her
late filing. The BIA affirmed.
2. A late filing of an asylum application is excused if an applicant demonstrates
“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); see also 8 C.F.R. §
208.4(a). Although the term “extraordinary circumstances” is not defined in the
statute or regulations, the regulations provide several examples. One such example
is when “[t]he applicant filed an asylum application prior to the expiration of the
1-year deadline, but that application was rejected by the Service as not properly
filed, was returned to the applicant for corrections, and was refiled within a
reasonable period thereafter.” 8 C.F.R. § 208.4(a)(5)(v). This court has also
2

-- 2 of 5 --

recognized that fraud by a non-attorney immigration consultant can constitute
extraordinary circumstances. Viridiana v. Holder, 646 F.3d 1230 (9th Cir. 2011).
3. The BIA erroneously determined that Jakupi did not argue before the IJ that
the ineffective assistance of the immigration consultant caused her untimely filing.
During her hearing before the IJ, Jakupi testified that she met with the immigration
consultant twice over the course of six months, and that she believed that the
consultant had filed the application after their second meeting. Jakupi also testified
that she made follow-up phone calls to “Immigration” and to the consultant to
confirm that the application had in fact been filed. Given that Jakupi’s application
was returned as incomplete and she argued before the IJ that the consultant’s errors
contributed to her delay in filing, the BIA erred in concluding that Jakupi had not
sufficiently raised this argument before the IJ. Although the dissent’s proposed
timeline captures one possible version of events, the precise dates discussed therein
are not clearly established by the record. The BIA should address Jakupi’s
argument on remand and, if necessary, remand to the IJ for further factual finding.
3. In light of our decision to remand Jakupi’s asylum claim, we also remand
her withholding of removal claim. In the event that Jakupi does not prevail on
remand, she may raise her withholding claim in any subsequent petition for review.
Petition GRANTED and REMANDED.
3

-- 3 of 5 --

Jakupi v. Lynch, No. 12-73035
Kleinfeld, Senior Circuit Judge, dissenting:
I respectfully dissent. Jakupi’s asylum application was untimely. The BIA
did not abuse its discretion by concluding that she did not show exceptional
circumstances justifying her delay. See 8 C.F.R. § 208.4(a)(5)(v) (2005 ed.).
Jakupi never argued before the IJ that her application was due to
“immigration consultant fraud.” See Viridiana v. Holder, 646 F.3d 1230 (9th Cir.
2011). There is no evidence the consultant did or said anything to delay Jakupi
from sending the application in on time. Rather, Jakupi said she thought her
application would be turned in after her second meeting with the consultant. That
meeting was well after the deadline had already passed. Here are the dates:
• March 24, 2004: Jakupi enters the United States.
• June 21, 2004: Jakupi submits a timely asylum application.
• July 26, 2004: Application returned as incomplete.
• January 26, 2005: Jakupi consults an immigration consultant.
• June 26, 2005: Jakupi meets for the second time with the consultant.
• August 15, 2005: Asylum application completed.
FILED
JAN 13 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 4 of 5 --

Thus she did not see her immigration consultant for six months after being notified
that her application was incomplete. Her completed application was not filed for
more than a year after she was notified that it was incomplete. She did not file a
complete application until five months after the one year deadline.
I would also affirm the BIA’s denial of Jakupi’s withholding claim as
supported by substantial evidence.

-- 5 of 5 --