Viridiana v. Holder
2011 WL 149339
9th Cir.2011Background
- Viridiana, an Indonesian citizen of Chinese descent, sought asylum in the U.S. based on ethnic persecution in Indonesia.
- She arrived January 30, 2001 and filed asylum about one year and three months after arrival, via aid from an immigration consultant who misled her.
- Her asylum and related applications were prepared by BM & Associates and later by a different law firm; the initial consultant failed to file the asylum application despite assurances.
- The IJ deemed the asylum filing untimely, and the BIA affirmed, while withholding of removal and CAT claims were considered on the merits but denied on those grounds.
- The government questioned whether Viridiana could show extraordinary circumstances; the court later held the delay was excused by immigration consultant fraud directly related to the late filing.
- The panel remanded the asylum claim for merits under the extraordinary-circumstances tolling and remanded the withholding claim in light of Wakkary v. Holder.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether asylum was timely filed and excused by extraordinary circumstances | Viridiana argues consultant fraud caused delay and may excuse timeliness under §1158(a)(2)(D). | Government argues untimeliness stands despite any consultant fraud and that Lozada procedures apply only to ineffective assistance of counsel. | Extraordinary circumstances due to immigration consultant fraud excuse the delay; remand for merits. |
| Whether the IJ improperly treated the extraordinary-circumstances claim as ineffective assistance of counsel | Viridiana did not allege ineffective assistance; fraud by a non-attorney should be treated as an extraneous extraordinary circumstance. | IJ treated the claim under 8 C.F.R. § 208.4(a)(5)(iii) as ineffective assistance of counsel. | Incorrect characterization; extraordinary-circumstances analysis governs, and fraud by a consultant can excuse lateness. |
| Whether Lozada procedural requirements apply to this extraordinary-circumstances claim | Lozada steps do not apply because Muaja was not an attorney and Viridiana did not allege ineffective assistance. | The agency insisted on Lozada compliance for an ineffective-assistance theory. | Lozada steps do not apply; the extraordinary-circumstances claim rests on consultant fraud, not ineffective assistance. |
| Whether the withholding of removal claim should be reconsidered in light of Wakkary v. Holder | Wakkary alters the standard and requires reconsideration of whether persecution is more likely than not if returned. | Existing record supports denial; Wakkary not discussed previously. | Remand to reconsider withholding of removal in light of Wakkary. |
Key Cases Cited
- Lopez v. INS, 184 F.3d 1097 (9th Cir. 1999) (tolled statute where fraud by non-attorney immigration consultant)
- Varela v. INS, 204 F.3d 1237 (9th Cir. 2000) (fraud by non-attorney assistant tolled limitations)
- Monjaraz-Munoz v. INS, 327 F.3d 892 (9th Cir. 2003) (reasonable reliance on attorney's agent can be exceptional circumstance)
- Hernandez v. Mukasey, 524 F.3d 1014 (9th Cir. 2008) (exceptional circumstances context; immigration consultant as non-attorney not equivalent to ineffective assistance)
- Reyes v. Ashcroft, 358 F.3d 592 (9th Cir. 2004) (ineffective assistance as exceptional circumstance under different statute)
- Lin v. Holder, 610 F.3d 1093 (9th Cir. 2010) (review of undisputed facts; standard for extraordinary circumstances)
- Tamang v. Holder, 598 F.3d 1083 (9th Cir. 2010) (extraordinary-ineffective assistance line of cases; distinction from exceptional circumstances)
- Ramadan v. Gonzales, 479 F.3d 646 (9th Cir. 2007) (jurisdiction to review untimeliness when facts are undisputed)
- Sael v. Ashcroft, 386 F.3d 922 (9th Cir. 2004) (withholding standard; membership in disfavored group relevance)
- Wakkary v. Holder, 558 F.3d 1049 (9th Cir. 2009) (reaudit of withholding of removal in light of intervening authority)