Singh v. Holder
2011 U.S. App. LEXIS 18624
9th Cir.2011Background
- Singh, an Indian national, entered the U.S. in 1999 as a nonimmigrant and sought asylum years later after alleged persecution by Indian police.
- Singh's asylum application was filed on November 20, 2000, more than a year after entry, rendering it time-barred under 8 U.S.C. § 1158(a)(2)(B).
- His wife was arrested by Indian police in September 2000; Singh attributes his late filing to hopes of a settlement and to his wife's arrest as persecution.
- The IJ granted withholding of removal and CAT protection but denied asylum due to timeliness; the BIA adopted without opinion.
- The government sought remand to apply correct standards for changed/extraordinary circumstances to excuse the delay.
- The Ninth Circuit remanded, holding the BIA must apply the proper legal standards to determine whether changed or extraordinary circumstances exist, and whether the filing delay was reasonable.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the agency applied the correct standard for changed circumstances | Singh shows changed circumstances via wife's arrest and settlement attempts. | BIA applied correct standard; Singh failed to show clear evidence of changed circumstances. | Remand to apply correct changed-circumstances standard. |
| Whether Singh's wife's arrest constitutes a changed circumstance | Arrest provides additional evidence of persecution and may strengthen eligibility. | Focus should be on the settlement; arrest not analyzed as change. | Remand to consider whether arrest is a changed circumstance. |
| Whether the extraordinary-circumstances analysis was properly applied | Nonimmigrant status maintained until close to filing can be an extraordinary circumstance. | Court requires direct relation to delay and reasonableness of delay; Singh failed. | Remand to apply the correct directly-related and reasonableness standards. |
| Whether the delay in filing after status expiration was presumptively reasonable | Delay under six months is presumptively reasonable; Singh filed within three months of status end. | The seven-month gap after retroactive extension expiration weighs against reasonableness. | Remand to assess under correct six-month presumptive framework. |
Key Cases Cited
- Fakhry v. Mukasey, 524 F.3d 1057 (9th Cir. 2008) (changed circumstances may strengthen late-filed asylum applications)
- Husyev v. Mukasey, 528 F.3d 1172 (9th Cir. 2008) (six-month presumptive reasonable period for delay after status expiration)
- Wakkary v. Holder, 558 F.3d 1049 (9th Cir. 2009) (presumptions about reasonable filing delays after status expiration)
- Ramadan v. Gonzales, 479 F.3d 646 (9th Cir. 2007) (recognizes changed/extraordinary circumstances in delay analysis)
- Ornelas-Chavez v. Gonzales, 458 F.3d 1052 (9th Cir. 2006) (remand when BIA applies incorrect legal standards)