*1 upon any misrepresentations about relied Further, role in their loans. even
MERS’s plaintiffs’ accept
if we were to conten- beneficiary that MERS is a sham split
the note is from deed system, not follow that any
MERS it does
attempt plaintiffs after the foreclose necessarily
defaulted their loans
“wrongful.” against claims plaintiffs’ original fail because
their lenders equitable tolling not stated a basis for
have estoppel of the statutes limitations on TILA
their and Arizona Consumer Fraud claims,
Act and have identified ex- conduct in outrageous support
treme their claim infliction for intentional distress.
emotional
Thus, we AFFIRM the decision of the court.
district SINGH, Petitioner,
Bhupinder Jr., Attorney
Eric H. HOLDER Respondent.
General,
No. 07-70056. Appeals,
United States Court
Ninth Circuit.
Argued April and Submitted
Filed Sept. *2 untimely
excuse asylum. agency question, When the addressed this n it applied incorrect standards. Ac- *3 cordingly, grant Singh’s petition review and remand this matter the BIA so may apply that it the correct standards. I Bhupinder Singh, a citizen and national India, entered the United States on 26, 1999, August as a nonimmigrаnt visitor with initial authorization to remain until September 1999. He fled India on account of abuse he suffered at hands India, police mistakenly who believed sympathized he with terrorists. The Inna Office of Lipkin, Kuldip Law S. police Singh, warrant, arrested without Dhariwal, Fremont, CA, for petitioner time, they three Each times. detained Singh. Bhupinder time, him for a lengthy period up to four West, General, Tony Attorney Assistant days, questioned him his about activi- Division, Federighi, Carol Senior Lit- Civil knowledge ties and of suspected terrorists. Counsel, igation Immigration Office of Lit- him, thеy-detained When police severe- Park, igation, Song Attorney, E. Office of ly Singh beat with sticks and leather Immigration Litigation, States United De- straps until lost consciousness. He re- Justice, D.C., partment Washington, quired medical treatment after each of the United respondent States of America. three arrests. was released from guaran- first after his parents arrest police
teed the watch would over him. Singh was released from third 60,000 only after his father paid R. Before: SIDNEY THOMAS and rupee the police. bribe to RAWLINSON, B. JOHNNIE Circuit After being United States for CARNEY, Judges, and CORMAC J. month, Singh about a applied for exten- Judge.* District sion of on Septem- visa THOMAS; Opinion Judge ber claimed he wanted to by Judge Concurrence RAWLINSON. stay in the States United because was not safe to He hoped return India. OPINION that, States, while in the he was United THOMAS, Judge: Circuit family arrange could a “settlement” or review, “compromise” police with the Indian we consider petition would petitioner being allow him return without whether the established or harassed circumstances would abused.
* California, Ana, designation. Carney, sitting by The Honorable Cormac J. District Santa Judge U.S. District Court for Central 1158(a)(2)(B). Department and Naturaliza- Immigration
The former (now Department part Security referred his Homeland Service Security)1 approved Singh’s placed of Homeland immigration tion to the court and request nearly later Depart- visa-extension him in proceedings. removal 17, 2000, retroactively effective. August Singh as under charged ment removable request pending, Singh While his first 1227(a)(1)(B) remaining request a second extend submitted permit- longer than his visa United States August visa to ted. filed his second long Not *4 police Singh’s Indian arrested
request, II According to Singh’s wife at her home. sought Singh removability conceded and statement,2 police came wife’s written removal, pro- asylum, withholding of and 6, September late on night to her house at against Tor- tection under Convention him ac- asking questions about and (“IJ”) immigration judge ture. found They militant. then cusing being him of credible, Singh’s testimony granted and he custody wife and Singh’s took into “started Singh’s request withholding of removal and slapping dragging[her] and told [her] protection under the Conven- India and come your that nоw husband will Against Torture. police po- wife told Singh’s station.” complaint against claim, lice she would file a Singh’s asylum As to the IJ con- beat her police them. The then Singh cluded that “has in fact been the and rods told in the [her] “wooden past persecution by victim of inferences of police going to teach station were government who believes that he a complaint.” how to file Once at the [her] enemy, affili- politically who believes station, police Singh’s claims wife the offi- community ated with a seeks inde- room, again, her beat her cers locked pendence.” And: raped her. and upon past events it is more like- [B]ased Singh filed not, assuming ly than the truth of Mr. 20, 2000, November two-and-a-half months Singh’s if he representations, time, At after his wife’s arrest. subject turns to his homeland he will be Singh’s request second for a visa extension form of maltreatment. the same Acts pending.3 was still persecutionf,] political him, opinion[,] imputed has been [sic] Because clearly pattern and there exists a and was filed more than a he had States, practiсe represented as in his appli- entered the United first untimely. tion. cation was U.S.C. 1, 2003, why 1. functions does not indicate she did On March record not were from testify, speculated former INS transferred the De- the IJ that she did but not (the partment agencies Justice to three U.S. happened want her husband know what Enforcement, Immigration and Customs U.S. during the arrest. Protection, and Customs and Border U.S. Cit- Services) izenship Immigration 3.Singh’s request a visa second extension newly Department formed Secu- Homeland 15, 2001, nearly February approved was six Security rity. Act See Homeland request. after he filed the The second months 107-296, L. No. Stat. 2135. Pub. authorized to remain extension August United States until was testify Singh's wife available to before retroactively deemed effective. (‘'IJ”), immigration judge but she did not.
Singh’s application untimely, asylum” but he because “it was the arrest of his argued that wife’s arrest- was a triggered wife that and not “changed that excused the circumstance” because he was in lawful nonimmigrant delay under Second, status.” concluded that 1158(a)(2)(D).4 The be- disagreed IJ Singh unreasonably delayed аp- provide cause did “clear plication filing it seven months after his convincing” evidence the settlement expired first visa extension and three negotiations to a cir- changed amounted expired. months after his second (the did not wheth- cumstance IJ consider timely petitioned us to review er the arrest of wife was a both of BIA’s decisions. circumstance). result, rejected aAs the IJ Singh’s asylum application as time-barred. Ill
Singh timely appealed the IJ’s decision
BIA,
adopted
which
IJ’s decision
We
jurisdiction
have
to review
Burbano, 201.
opinion, citing In re
without
petition
under 8 U.S.C.
*5
(BIA 1994)
872,
(noting
N. Dec.
that
&
874
mayWe
review
agency’s application
adoption or affirmance of a
of an
decision
changed
or
circum
IJ, in
part,
“simply
whole or in
is
a state-
exception
undisputed
stances
facts. Va
upon
that
ment
the Board’s conclusions
Holder,
(9th
1038,
hora v.
641 F.3d
1042
review of the
with those
record coincide
Cir.2011);
Holder,
Viridiana v.
630 F.3d
Immigration Judge
which the
articulated
(9th
942,
Cir.2011);
Holder,
946
Taslimi v.
decision.”).
in his or her
(9th
981,
Cir.2010);
590 F.3d
984
Husyev
Singh timely petitioned us to review the
(9th
Mukasey,
v.
528 F.3d
Cir.
order, but,
petition
BIA’s
while thаt
was 2008);
Gonzales,
Ramadan v.
application has been
within
A
after the date of the alien’s arrival in the
“
States,”
1158(a)(2)(B),
§
United
8 U.S.C.
‘[C]hanged
in [8
circumstances’
only provide evidence
applicant
need
1158(a)(2)(D)
§
to cir
shall refer
]
...
immigra-
of
satisfaction
“[t]o
materially
appli
affecting
cumstances
judge ...
he or she
for
qualifies
that
eligibility
asylum.”
for
cant’s
8 C.F.R.
deadline,”
Ramadan,
1-year
1208.4(a)(4)®;
exception
to the
§
see also
1208.4(a)(2)(i)(B).
Hu-
applicant
F.3d at
Once
has C.F.R.
See also
657-58.
issue,
hoped
arrange
family
that
5. As to this
we review the IJ's decision
testified
by
adopted
opinion,
compromise
рolice
it
because the BIA
without
or settlement
Burbano,
citing
money
In re
20 I. &
872. See
paying
N. Dec.
them
in return for their assur-
Holder,
Tamang v.
they
not
or harass
ance that
would
harm
Cir.2010).
efficacy
plan
Singh if he
The
of this
returned.
issue,
separate
but the details are suffi-
rate,
why
delayed
ciently
explain
any
clear to
6. At
the details
the settlement
negotiations
asylum.
sufficiently clear.
were
Thus,
argues
Here, that the here, the Government concedes appli- Relevant one of those is: “The support “further relevant circumstances ... immigrant cant maintained lawful fleeing his home [Singh’s] reasons ... until reason- nonimmigrant status place.” Singh country in the first testified period filing able before the apply that he waited more than a 1208.4(5)(iv); application....” C.F.R. thought he conditions because Mukasey, see Dhital v. also F.3d could return to improve would so he (9th Cir.2008); Husyev, 1049-50 hoped family particular, India. at 1181. “compromise” or could reach a “settle- Here, the BIA concluded extraordi- police ment” with the that would allow him nary-circumstances ap- exception did not being to return without threat of beat- Singh’s application for two ply reasons. After en or arrested. wife was First, it concluded lawful nonimmi- arrested, apply he decided to “directly grant status was not related they can because “if arrest her then filing asylum” of his ” Thus, just kill as the will me.... Govern- “it of his because arrest wife ment “further evi- argues, triggered application and not provides support” dence” and “further he was in lawful status.” asylum. Singh’s eligibility This evi- Second, it concluded that unreason- may dеnce establish circum- ably it delayed Fakhry. stances under expiration seven months applied wrong Because the IJ first extension three months after his standard, BIA so we remand to the extension. second apply can the correct standard first First, analysis. erred its Omelas-Chavez, instance. 458 F.3d at incorrectly “directly the BIA applied *8 standard, In correct applying the Singh’s to circum- requirement related” BIA the should consider whether the ar- Second, purported delay fell stances. a rest wife constituted presumptively within the reasonable time circumstance. period.
B 1 may The Government also consider applica- BIA late concluded if the untimely application appli simply tion should not be excused because delayed cation of extraordi was account regulations enumerate maintenance nary 8 circumstances. as 1158(a)(2)(D). nonimmigrant possible lawful status ‘extraordinary § “The term Instead, circumstance. ... to or circumstances’ events refer[s] reasoned, also had show directly factors related to failure nonimmigrant status was 1-year meet deadline.” maintenance C.F.R. applica ample, of his “directly filing related the circumstances enumerated at 8 1208.4(a)(5)(i)-(vi): Indeed, § asylum.” applicants for must C.F.R. “directly requirement, satisfy (i) related” illness or physical serious mental dis- even when the relevant circumstances are ability, regulation. Wakkary
enumerated in the (ii) legal disability, Holder, Cir. (iii) counsel, ineffective assistance of C—, 2009);11 re I. & N. Dec. Y — (iv) immigrant maintenance of lawful or 2002) (en banc). (BIA However, status, nonimmigrant misappliеd requirement the BIA (v) an improper application, and Singh’s circumstances. (vi) the death serious illness of the The BIA reasoned that lawful applicant’s legal representative or a “directly nonimmigrant was not re- the applicant’s member of immediate filing lated to the of his application family. asylum” “it was the arrest of Certainly, these circumstances de- [Singh’s] triggered wife lay However, an application. they would tion and not because he lawful was likely “trigger” never of an filing appli- nonimmigrant status.” BIA misinter- catiоn because do not create basis directly-related preted requirement. (unlike, eligibility example, 1208.4(a)(5), an appli- Under 8 C.F.R. evidence of increased or persecu- renewed showing cant burden has the tion). standard, then, The BIA’s misses directly relevant circumstances “were the mark because these and other extraor- [applicant’s] lated to the failure file the dinary circumstances are not reasons for ” application 1-year period.... within the filing asylum application they are rea- — The BIA held to a stan- different Indeed, sons delaying an application. required dard. It him to show if interpretation the BIA’s in this case “directly relevant circumstances were re- were applied, petitioner could never lated application to the of his qualify exception. for the asylum.” applicant This was error. The The facts here precisely illustrate must show that the relevant circumstances BIA’s flaw. The BIA concluded did were directly related to the reason the directly-related requirement meet thе delayed, was not the reason the “because it was the of his wife that eventually filed. triggered and not because conflicting plain
Aside from
lawful
status.”
Indeed,
language
regulation,
problem
Singh testified that his wife’s ar-
with the BIA’s standard
that it is virtu-
rest prompted
application.
But this is
Consider,
ally
impossible meet.
for ex- not
inquiry.
the relevant
The relevant
noting
Wakkary,
It
'extraordinary
directly
is worth
that in
when
circumstances ...
re
208.4(a)(5)(iv)
examined C.F.R.
one-year
lated to the failure to meet
dead
—the
*9
discussing
subsection
maintenance of lawful
”).
Husyеv,
line'
As in
after we determined
immigrant
nonimmigrant
never
or
status —we
status,
petitioner
the
had maintained lawful
questioned
applicant’s
whether the
mainte
analyze
we went on to
the reasonableness of
directly
nance of that status was
related to the
delay
filing
the
in
the
without
untimely application
delayed.
reason his
was
determining
directly
delay
whether the
was
Instead,
Wakkary,
F.3d at
558
1056-58.
petitioner's
related to the
Wak
lawful status.
Id.;
apparently assumed that it
see
was.
also
1058-59;
kary,
at
Husyev,
558 F.3d
528 F.3d
Ramadan,
(observing
inquiry
would
periods of time
be consid-
Shorter
tion.
basis,
the
case-by-case
ered on a
analysis,
in its
the BIA erred
Because
into
the
taking
account
decision-maker
that
BIA
so
the
we must remand
issue
totality of
circumstances.
inquiry.12
to
correct
apply
can
standard
(em-
as-Chavez,
76121-01 at
Reg.
at
65 Fed.
76123-24
458 F.3d
Ornel
added).
com-
by
We observed that
phasis
1058.
period,
the six-month
municating
“[T]he
agency
pains
has taken
articulate
period’
applies
that
that
‘reasonable
standard
The BIA also concluded
asylum
temporary nonimmi-
unreasonably delayed
ap
petitioners
his
whose
grant
expired.” Husyev,
he filed it seven months
has
plication because
status
of his nonimmi
after
first extension
F.3d at 1181.
standard is a “mean-
This
And,
three months
grant
expired
visa had
and
“In
ingful
Id.
the absence
standard.”
had expired.
after his second extension
considerations,
any
the six
special
However,
finding
sup
BIA’s
is
in
period suggested
preamble
months
ported
substantial evidence.
regulations
not an
is
unreasonable
1182;
at
presumptive deadline.” Id.
ac-
filing delay
held
a
We have
1057-58;
Wakkary,
cord
F.3d at
see
applicant’s
than
months
an
less
six
after
Viridiana,
(conclud-
also
at 951
630 F.3d
nonimmigrant
expired
pre
status
has
in
ing
delay
a three-month
was reasonable
sumptively
Husyev,
reasonable.
528 F.3d
Dhital,
circumstances);
light
cf.
1181; Wakkary,
at
F.3d at 1057-58.
(holding
two-year
F.3d
at 1049-50
holding
preamble
We based this
delay
filing
asylum
—with-
regulation that
enumerates mainte
any explanation
delay
out
—was
nonimmigrant
possible
nance of
status as a
unreasonаble); Husyev, 528
at 1181-
extraordinary circumstance:
(holding
364-day
delay again,
—
expects
Generally,
Department
any explanation
unreason-
without
—was
asylum-seeker
apply
possi-
as soon as
able).
expiration
ble
his or her valid
after
day
nonimmigrant
last
of lawful
status,
failure to
will
do so
result
August
applied
rejection
status was
He
application.
less than three months later.13
Clearly, waiting
longer
six months or
period
or
This
reason
expiration
presumptively
termination
status
time
delayed
Singh's
ex-
testified that he
his
13. The fact
first extension
he twice extended his
pired
lawful
prior to
filed his
seven months
when he
status,
family
hoping
his
asylum,
perhaps
while
rele-
negotiate
"compromise”
a "settlement" or
vant,
significance.
government
is of little
that,
his safe
to India. He testified
return
granted
retroactively,
effective
extension
arrest,
following
longer
wife's
he no
be-
curing
expiration.
the technical
Given
return,
safely
lieved that he could
he filed
extension, Singh
awas
nonim-
second
lawful
asylum application
in short order. On
August
applied
migrant as of
and he
remand,
consider whether
should
less than three
later. See
months
Singh's nonimmigrant
directly
status was
Wakkary,
(considering
at
asylum application
lated to
the reason
only
expired
two
visas
the most recent of
delayed, given that the
allowed him to
determining
petitioner's
when
whether
temporarily in
remain
the United States while
asylum application
delay
family
negotiate a
he waited for his
"settle-
time).
period of
reasonable
"compromise”
ment"
safe
for his
return to
*10
India.
1182;
longer
F.3d at
...
Husyev,
expiration
able.
Wаkka
status
after
of
This
ry,
particu
”)
We remand this matter
the BIA so
“Wak-
may
kary
correct
apply
standard
submitted
application
...
determining
when
whether
satisfies
six
days
months and some
his status
extraordinary-circumstances
exception.
expired
Wаkkary,
...”
V submitted application seven months af- agency applied legal incorrect stan ter his A expired. status determination of dards when it determined that had unreasonableness in that circumstance is extraordinary established precedent. consistent with our See Hu- circumstances, excusing untimely appli syev v. Mukasey, 528 F.3d Moreover, cation. its determination that Cir.2008) (establishing six months as a application failed to file his within a deadline). presumptive period reasonable of time after his lawful sum, I agree that this сase should be expired is not sup remanded to agency of ported by evidence. substantial Accord the correct to the standard determination ingly, grant petition and re extraordinary whether circumstances mand this matter the BIA so that it can only, exist. For that I reason concur in apply the correct standards in the the result. Ornelas-Chavez, first instance. at 1058. not and do not We need reach
any parties. other urged issues GRANTED;
PETITION REMAND-
ED. P.; G., MICHAEL Elizabeth as Guard RAWLINSON, Judge, Circuit . Courtney G., ian Ad Litems of an in
concurring the result: minor; Courtney competent G., an agree incomрetent minor, I case should be Plaintiffs-Appel lants, manded for of the correct stan- dard to the determination of whether the petitioner has sufficient showing made EDUCATION, DEPARTMENT OF circumstances excuse Hawaii, State of Defendant- the untimely filing of his Appellee. However, tion. I expressly disavow the No. 09-16078.
majority’s holding that the seven-month lapse expiration between the Appeals, United States Court visa extension and the Circuit. Ninth ” significance.... is “of little Argued Submitted June Majority Indeed, Opinion, p. n.13. Filed Sept. the governing regulation is to the con- trary. Reg. See 65 Fed. 76121-01 at (“Clearly, waiting six months or