Viridiana v. Holder, 2011 U.S. App. LEXIS 14699

Viridiana, an Indonesian citizen of Chinese descent, seeks asylum and withholding of removal, with the BIA affirming an IJ denial of asylum as untimely.
Viridiana arrived in the U.S. on January 30, 2001, and filed asylum after one year and three months, asserting an extraordinary circumstance due to immigration consultant fraud.
Muaja, a non-attorney consultant, assisted with her visa extension and asylum filing but allegedly failed to file the asylum application and misled Viridiana.
The IJ treated Viridiana’s claim of extraordinary circumstances as ineffective assistance of counsel and rejected it; the BIA affirmed, leading to this petition for review.
The court remands to consider whether immigration consultant fraud qualifies as an extraordinary circumstance excusing untimely filing, and to reconsider withholding of removal under Wakkary.
The agency must decide the merits on remand, including whether Viridiana filed within a reasonable time after the alleged fraud and whether past persecution supports relief.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether extraordinary circumstances excuse untimely asylum filing	Viridiana argues consultant fraud qualifies as extraordinary circumstance.	Agency treated claim as ineffective assistance and rejected it under Lozada procedures.	Remanded for agency to decide if consultant fraud qualifies as extraordinary circumstances
Whether withholding of removal should be reconsidered in light of Wakkary	Viridiana is eligible for withholding based on past persecution or likelihood of future persecution.	Ij/BIA denial stands pending reconsideration under intervening law.	Remanded for reconsideration consistent with Wakkary

Ramadan v. Gonzales, 479 F.3d 646 (9th Cir. 2007) (limits review of untimeliness to undisputed facts for extraordinary circumstances)
Monjaraz-Munoz v. INS, 327 F.3d 892 (9th Cir. 2003) (agency’s reliance on attorney’s agent for forfeiture contexts)
Lopez v. INS, 184 F.3d 1097 (9th Cir. 1999) (equitable tolling where non-attorney fraud impaired filing)
Varela v. INS, 204 F.3d 1237 (9th Cir. 2000) (fraud by a non-attorney agent tolls deadlines)
Reyes v. Ashcroft, 358 F.3d 592 (9th Cir. 2004) (exceptional circumstances in removal context include ineffective assistance)
Lin v. Holder, 610 F.3d 1093 (9th Cir. 2010) (reviewing undisputed facts where asylum timeliness is at issue)
Wakkary v. Holder, 558 F.3d 1049 (9th Cir. 2009) (changes in law require remand for withholding of removal reconsideration)
Sael v. Ashcroft, 386 F.3d 922 (9th Cir. 2004) (standard for withholding of removal considerations)
Gonzales v. Thomas, 547 U.S. 183 (U.S. 2006) (per curiam relief related to asylum processing (cited for context))
Lozada, 19 I. & N. Dec. 639 (BIA 1988) (procedural Lozada requirements for ineffective assistance claims)