*1 Cоx, II, Lynch, Gil- Aprile, J. Vincent SAGAYDAK; Yaroslavovich KY, Louisville, for Defen- Mahan, man & Sagaydak, Nataliya Bogdanivna dant-Appellant.
Petitioners, COOK, Circuit NELSON Before: v. ROSEN,* Judge. District
Judges; GONZALES,* Attorney Alberto
General, Respondent. ORDER No. 02-74299. having requested court of the
A member Appeals, States United Court banc, and less case en rehearing of this Circuit. Ninth regular in judges majority than 6,May 2004. Argued and Submitted in favor of that having voted service active 4,May Filed rehearing has request request, pursu- original panel referred been 35(c). 6 Cir. I.O.P.
ant has voted panel majority of
A part III.E respect to rehearing with
grant decision, it was because original our entered light of the decision
erroneous court United by this day earlier Oliver, Cir.
States
2005). earlier our vacate We therefore sentence, vacate Bruce’s
affirmance sentence, remand resen
Bruce’s Booker, States light of United
tencing
— L.Ed.2d U.S. -, 125 S.Ct. (2005). *
* prede- substituted for Rosen, Gonzales Alberto States District United Gerald E. Hon. Ashcroft, cessor, Attorney General of as John Michigan, Judge Eastern District for the States, R.App. P. pursuant to Fed. the United designation. sitting by 43(c)(2).
Tom Youngjohn, WA, Way, Federal petitioners. D.C., McKay, Washington, Leslie for the basis of implied or actual respondent. opinion, and we remand for the BIA to petitioners determine whether On Petition for Review of an Order of satisfied the remaining eligibility require- Immigration Appeals. Agen- the Board of *3 asylum, § ments for 8 U.S.C. and A77-424-463, cy Nos. A77-424-462. removal, withholding of § 8 U.S.C. HUG, TASHIMA, PAEZ, Before: and I. Judges. Circuit case, petitioners in this Viktor and PAEZ, Judge. Circuit Nataliya Sagaydak, are citizens must, eligible asylum, To be for an alien immigrating Ukraine. Before to the Unit- changed extraordinary absent or circum States, ed Viktor worked as a tax auditor stances, asylum application file an within for the Ukrainian government. During an year arriving in the United States. Corporation (“Hidro”), audit of the Hidro 1158(a)(2). § Illegal 8 U.S.C. Im illegal Viktor uncovered an tax-evasion migration Immigrant Reform and Respon Hidro, scheme. Viktor discovered that sibility Congress Act of made clear by high-ranking founded government of- jurisdiction that “no court shall have to ficial, payment had evaded the of automo- Attorney review determination import reported bile duties. When Viktor respect General” with to whether the alien findings Hidro, his they officials at- had met deadline or had tempted to bribe to change Viktor his re- satisfy failed to this time limit because of port. They first offered him an envelope extraordinary circumstances. Pub.L. 104- dollars, filled with valuable American and (1996) (codi 208, 604, 110 Stat. 3009-691 refused, they after he offered a vacation to 1158(a)(3)); fied at 8 see also U.S.C. Germany. Viktor refused both bribes and Hakeem v. prosecutors. referred the matter to local Cir.2001). However, case, in this we are later, confronted days with unusual situation: The Ten forcibly two men re- petitioner argued lead untimely that his Nataliya moved from bus and warned filing extraordinary was due to circum her that her husband “should be more stances, Immigration Judge both the but us, agreeable with because if he will not (“IJ”) Immigration and the Board of Ap us, agree with we know what we will do.” (“BIA”) peals failed to address the issue. Nataliya miscarriage days suffered a three Attorney We hold that when the General assaulted, being after which she attributed “determination,” fails to amake this court to this incident. jurisdiction grant has petition began receiving Viktor also threats. agency remand the case so that change him to report, Callers warned his charged making with this determination Nataliya’s and reminded abduc- Viktor properly can do so. tion. A Hidro henchman also informed petitioners argued Both also powder that “we will make a out of Viktor targeted by alleged their persecutors you.” protected ground. on account of a 8See safety, Fearing arranged for his Viktor 1101(a)(42)(A). U.S.C. The IJ disa- him for cousin to drive to work. While greed, summarily and the BIA affirmed. driving Viktor’s cousin was alone We find that substantial evidence does car, windows, equipped with tinted he was support peti- the IJ’s conclusion that the supposed shot. The cousin targeted purely personal tioners were time, punishment revenge, chauffeuring rather than on the Viktor at that Vik- but 208.16(c). moment.- A The IJ held that Vik at the last C.F.R. tor had cancelled time, that “next asylum warned Viktor he thug “ineligible Hidro tor was sincе brother, we your to shoot going are not September arrived in the States on United you.”1 will shoot 17, 1997, did not until 18, 1998, year November more than one to the United States fled Viktor not, however, after his arrival.” The IJ did 17, 1997. After he September arrived on Ukraine, argument address Viktor’s that extraordi Sagaydaks’ apart- left had Nataliya nary delay. vandalized. then circumstances had caused the ment was Even joined United States. Nataliya, respect With the IJ deter country, two men had left though both mined that she had filed within the one- inquiring after father threatened Viktor’s bar, and therefore considered the *4 of whereabouts. Members about Viktor’s asylum application. merits of hеr involved in a Nataliya’s family were also addressing Viktor’s claim with- for. Nataliya that sus- suspicious car accident holding Nataliya’s removal and claims officials. pects was caused Hidro asylum withholding, the IJ deter- for, 18, asylum on filed for November Viktor Sagaydaks mined that the failed to estab- 1998, Nataliya in applica- and included they persecuted lish that would be on ac- During proceedings, tion. the removal protected category. count of a The IJ that had failed to IJ noted Viktor rejected specifically Sagaydaks’ con- year arriving in the United within one tention that tax Ukrainian auditors consti- Sagaydaks’ attorney asked The States.2 Mоreover, group. tute a bona fide social the fact that had to consider Viktor that Sagaydaks the IJ reasoned were prior attorney long before contacted his facing harm because Viktor was involved one-year passed. deadline The IJ re- officials, prosecution corrupt in the not that it was “not within author- sponded membership pro- because of in a because, fact into account ity” to take that tected class. the IJ ruled that “in automatically federal law explained, [Nataliya], case there is not a well- asy- precludes applying an alien from for fear of persecution upon fоunded based being lum after United States for one of grounds, the five and for both re- year. more than one spondents, probability there is not a clear explicitly The IJ found Viktor’s tes persecution upon based one of the five credible, timony and did not com grounds they if will be Nataliya’s credibility. ment on there We Additionally, return to the Ukraine.” testimony fore of their as true. accept each petitioners ineligible the IJ found both Ashcroft, See Mashiri v. 383 F.3d persecutors CAT relief because their (9th Cir.2004); Ashcroft, Kalubi v. citizens, private government not officials. (9th Cir.2004). The IJ BIA, Sagaydaks appealed Sagaydaks’ applica nonetheless denied arguing part by failing the IJ erred asylum, their applica tions for as well as qualified to determine whether Viktor had withholding tions for of removal under 8 1231(b)(3) extraordinary-circumstances for the excep- U.S.C. relief under the (“CAT”), Against Torture one-year Convention- 8 tion to the time BIA bar. The hand, language Nataliya,- 1. Viktor testified that the Ukrainian on other arrived 13, 1998, February United States on and the distinguish does not the words “brother” and eligible IJ found that she was therefore "cousin,” and that this was sim- misstatement asylum despite applicant’s ineligibili- the lead ply an error in translation. ty- by extraordinary cir- filing was not caused opinion without the IJ’s decision affirmed Sagaydaks cumstances. 2002. The on November rеview on timely petition for their
filed case, if, But what as occurred Viktor’s 16, 2002.3 December determination, even an IJ makes no peti- though the issue was raised II. Although tioner? the IJ made determi- by not that the IJ erred contends applied had more than nation that Viktor failure to determining whether Viktor’s arriving in the United after time bar was attribut- meet States, consider, much less the IJ did We circumstances. exceptional able to determine, Viktor’s failure to whether agree. one-year time bar was caused meet the The IJ’s extraordinary circumstances. A. only respect with to Viktor’s statement whether we first consider Court asylum application “[t]he challenge to review this jurisdiction ineligible respondent finds that the male Normally, this court ruling.4 to the IJ’s he arrived in the United since claim petitioner’s consider a cannot 17, 1997, did not September States should excuse exceptional circumstances asylum until apply for November *5 Hakeem, 273 F.3d filing. late See after his arrival. Sec- year more than one because, true under 8 U.S.C. This is 815. 208.4(a)(2).” 208(a)(2)(B); 8 C.F.R. tion 1158(a)(3), “jurisdiction to re § we lack and his citations refer Both the IJ’s words Attorney of the any determination view bar; one-year specifically to the time (2) 8 U.S.C. paragraph [of under General extraordinary-circum- do not address the 1158(a) (2) 1158(a) §of Paragraph § ].” exceptiоn. stances the one- separate provisions: two contains making in merely the erred Had IJ subpara in contained year filing deadline (D), subparagraph a determination under (B),5 extraordinary-circum and the graph jurisdiction. lack 8 U.S.C. we would filing to the exception stances 1158(a)(3). Here, however, the IJ’s error (D).6 in subparagraph contained deadline “any not make determina was that he did Thus, or BIA’s cannot review the IJ we jurisdiction-stripping at all. The tion” apply that an alien failed to determination 1158(a)(3) only §in contained provision arriving in the United year within reviewing “any determi- in us from delay precludes that the or a determination States year application been filed within the has day petition for review 3. The same filed, alien's arrival to date of the Sagaydaks also filed a motion after the 1158(a)(2)(B). reopen The BIA denied 8 U.S.C. with the BIA. United States.” petitioners 2003. The motion March petition amended for review did not file an (D) provides 6.Subparagraph in full: incorporate BIA's denial of the motion may application of an alien An Accordingly, of the reopen. the BIA's denial considered, notwithstanding subpara- reopen before us here. is not motion (B) (C), demon- graphs if the alien Attorney satisfaction of the strates to the course, We, jurisdiction to deter- 4. changed cir- the existence of General either Aragon- jurisdiction. whether we have mine materially ap- which affect cumstances (9th Cir.2000). Ayon asylum extraordi- plicant's eligibility for delay relating to the nary circumstances (B) "Subject provides Subparagraph in full: spec- period filing application within (D), (1) paragraph shall not subparagraph (B). subparagraph ified in demon- apply unless the alien to an alien 1158(a)(2)(D). U.S.C. by convincing evidence that clear and strates respect extraordinary- exception. During even aware of this with nation” light exception. circumstances hearing, attorney removal Viktor’s at- “any failed to make deter- fact that the IJ tempted delay to submit evidence that the mination,” extraordinary- though the even filing application by was caused raised Viktor’s issue was circumstances attorney’s prior ineffective assis- 1158(a)(3) attorney, we conclude IJ, however, interrupted tance. The Quite simply, in this case. does not attorney and said: “determination,” reviewing a we are not Well, only thing going is a failure to make determination. but the change my if ruling you make me when, here, as occurred hold that application show me an that was submit- that his failure to file a petitioner alleges ted before— due to ex- timely asylum application was MR. YOUNGJOHN TO JUDGE: traordinary circumstancеs and both that, I wouldn’t to do Hon- be able Your and the BIA fail to determine whether the or. extraordinary-circumstances exception jurisdiction
should
we have
to re-
apply,
MR.
JUDGE TO
YOUNGJOHN:
the failure to make a determination.
view
Because,
say, you
get
as I
can’t
around
just
language
clear
of the law....
I’m
B.
trying to find the section on time limit.
next consider whether it was
see,
Let’s
the alien must demonstrate
whether
error for the IJ not to determine
convincing
clear and
evidence that the
filing
Viktor’s late
was due to extraordi
application
was filed within one
af-
goes
think it
nary circumstances. We
ter the date of
the alien’s arrival
the BIA are
saying
without
that IJs and
filed,
United
application
States. So
raised
ignore arguments
free to
*6
would not
beginning preparations
mean
petitioner.
Ashcroft, 362 F.3d
See Chen v.
or whatever.
(9th Cir.2004)
(holding
620
that “the
MR. YOUNGJOHN TO JUDGE:
explana
IJ erred
an
failing
consider”
Please,
record,
for the
can I—
petitioner
tion
for her
offered
JUDGE TO MR. YOUNGJOHN:
testify
appear
brother’s failure to
behalf).
want,
anything you
You can submit
judges, although
her
Mr.
Immigration
discretion,
given significant
Youngjohn.
“cannot reach
in
capriciously”
their decisions
and “must
just
you
I
want
to know that I don’t
‘how[they]
dicate
in
weighed the factors
my authority,
have—it’s not within
even
[they]
volved’ and
arrived at [their]
‘how
if I wanted to
it—do
”
INS,
Yepes-Prado
conclusion.’
10 MR. YOUNGJOHN TO JUDGE:
(9th Cir.1993)
(quoting
F.3d
1370
Yes, sir.
Dragon
F.2d
1307
JUDGE TO MR. YOUNGJOHN:
Cir.1984)). Furthermore,
long
it has
been
decide,
know,
you
case,
—if I
in this
I
held that the BIA’s “failure to exercise its
that,
going
think I’m
to do
I would be
discretion,
own
contrary
existing regula
Immigration
reversed
the Board of
tions” is reversible error. United States
Appeals.
ex rel. Accardi v. Shaughnessy, 347 U.S.
MR. YOUNGJOHN TO JUDGE:
(1954).
260, 268,
74 S.Ct.
see Ochave that the IJ’s make clear that a victim who is Cir.2001), we conclude Our cases corrup this standard.9 targeted exposing government not meet for finding did political “on account of’ tion is politi a nexus to the To establish investigating Retaliation for -opinion. must Sagaydaks opinion ground, cal corruption by political figures publicizing (1) an affirma had either show that Viktor very political a act. by its nature (2) opinion,10and imputed political tive or INS, 192 F.3d Reyes-Guerrero v. account that targeted on that (9th Cir.1999) persecu (holding 1245 Ashcroft, Njuguna v. 374 opinion. See political opinion tion was on account Cir.2004) (“He (9th must 770 investi petitiоner’s prosecutorial because opinion would political establish corruption gation political into acts of Vik potential persecutors.”)- motivate nature, “was, by very political”). its We government employee a status as tor’s held, example, for that “retaliation have imputed politi to show an clearly suffices corruption act publicizing our law. have opinion cal under case account of a persecution amounts to “persecution that we consider stated opinion” petitioner even when the political political figures for or with those who work espouse political theory.” a Ha “did opinion on account of the (9th Ashcroft, v. 380 F.3d san if the nature of their employer their even Cir.2004); Njuguna, F.3d at see also political.” ... is not in itself Navas work 770-71; INS, 1177, 1181 v. 205 F.3d Grava INS, 217 F.3d 659 n. 19 Cir. (9th Cir.2000) (holding that nexus existed 2000). aligned politi with the Viktor was, government exposed where cor employee opinion employer simply cal of his government ruption supervisors). as a offi of his fact that he worked government policies. See enforcing, cial require These the cor- cases also Aguilera Cota ruption being far-reaching exposed (9th Cir.1990) (“[Petitioner]’s a status as Hasan, roots. the “insti- example, employee oppo caused the government corruption” tutionalized level of the local government classify him nents of the as un- political leadership petitioner that the political opinion.”). of a person ‘guilty’ beyond “far reported covered and went individual, case.” F.3d at also has anomalous established Grava, Citing pointed his troubles with Hidro arose on account of 1120. out that proper ground denying nationality, membership particular was a CAT relief. not, however, deny Nataliya's group, political opinion. They The IJ did social or his simply testify claim for under 8 U.S.C. 1158 or want to coerce him not added). Thus, Sagaydaks’ withholding against (emphasis claims for of re- them” considered, 1231(b)(3) rejected, Sagaydaks' moval under 8 U.S.C. on the but *8 persecutors govern- they facing persecution basis that their were not claim that were on political opinion. ment officials. account of Viktor’s law, Initially, reject Sagaydaks’ unchanged by 9. the conten- "Under our case and 10. Elias-Zacarias, applicant can tion that the IJ failed to consider whether establish his they political opinion on account of Viktor's on the basis of his own affir views, political opinion. political neutrality, political the IJ did ana- mative his While lyze political-opinion category political opinion imputed a the as thоr- or him his INS, 1482, oughly analyzed social-group persecutors.” Sangha as he cate- 103 F.3d (9th Cir.1997) gory, explicitly (citing corrupt INS v. Elias-Zaca stated that 1488 rias, Corporation Hidro officials "do not wish to 502 U.S. 112 S.Ct. 117 L.Ed.2d his-race, (1992)). religion, harm due to his 38 [Viktor] “ (June 1997) Conditions Country to a and untethered completely ‘retaliation Claims”). (hereinafter Asylum afford a does not system governmental of “Profile ” (quoting at 1121 asylum.’ Id. basis president, a new Leonid Kuch- 3). have therefore at 1181 n. We F.3d ma, According to the was elected. CIA’s political a nexus to recognize refused Factbook, eco- pushed “Kuchma has World oc alleged persecution opinion where reforms, financial disci- nomic maintained animos personal of only as a result curred almost all re- pline, and tried to remove political “a difference of rather than ity, prices foreign over and maining controls INS, 785 Zayas-Marini philosophies.” changes to Ukraine’s eco- trade.” These (9th Cir.1986); Ko see also were, course, politically of system nomic 1112, 1117 zulin v. strong resistance charged, faced and Cir.2000) face of a crew (stating that reforms, part of his Parliament. As ship’s captain a member’s accusation efforts to uncov- Kuchma substantial made captain’s endeavors provisions, “[t]he stole crime, imple- that he organized policy a er questionable order within to maintain Inspectorate Tax through mented do not unpalatable, however enterprise, at testified where worked.11 Viktor politi account of persecution constitute that in the same hearing his removal opinion”). cal election, a year of Kuchma’s Viktor took different slightly audit was Viktor’s “that I ... will be new oath of office pri- a corruption within that it uncovered country, work on serving my do the behalf insti- government not a organization, vate building new my country, and will be a of accept refusal Viktor’s tution. declara- country.” According Viktor’s duty to and abdicate his Hidro’s bribes tion, to uncover and “wrong his task was nоt a stance critical testify was resources!, financial illegal use of state party. figure particular political Cf. negative conse- [the] is one which] at 770-71. Nonethe- Njuguna, 374 F.3d method of conduct- quences of a ‘socialist’ less, the foundations implicated it economy....” Viktor’s work ing a national undeniably and was government Ukrainian to the new deeply politi- tied was therefore a statement context political reforms. cal and economic At the time evolving politics. country’s meant the end of “busi- changes These arose, troubles Ukraine Sagaydaks’ close- Hidro had been like Hidro. nesses” to a with its transition struggling was govern- communist ly tied to former economy. State free-market fledgling ment, prominent founded was country’s tiiat Department reported who government that former member of this tran- greatly” with economy “suffered post government hold a continued to of the Soviet following collapse sition put audit. As Viktor time of rampant was Corruption Union in it, tied to the current was founder “[t]he organized government, throughout most way that in the same government, influencing grew accustomed criminals gov- in the Ukraine has organized crime bribery intimi- through both witnesses the State with ernment Consistent ties.” Department of States dation. See United assessment, Viktor testified Department’s State, Asylum Claims Ukraine —Profile of oppo- supporting its and businesses Inspectorate apparently 11. The Tax Democracy, According agency. Human highly politicized Bureau nents.” *9 Labor, Department sources Department, Rights, "[n]umerous State United States and gov- used charge State, the administration has Reports that Country on Human In- agencies, particularly Tax 25, 2000). (Feb. ernment Rights Ukraine 15 Practices: pressure opposition media spectorate, to security forces] officials was a which the exist is bribery government [Haitian that Moreover, “if challenge underpinnings polit- some- of the problem in Ukraine. posi- and ... has a body Similarly, has connections system.” ical Id. at 727. Vik- they can create government, tion in the challenged political sys- tor’s actions company private or an institution or such by corruption tem of which Hidro existed Hidro, provide will like which business sought Hidro to maintain which activity poli- the law....” The new against through threats and bribes. Ukraine, which from Hidro’s cies The concluded that the Hidro officials represented, signaled perspective, Viktor prevent testi- motivated system. that the end of in- mony, preserve their own economic government pol to the new By adhering terests, punish “or to take Viktor bribes, refusing Hidro’s icies and him.” revenge against assuming Even opposition stance in political took correct, it conclusion was does not under- that corrupt government practices allowed claim that mine Viktor’s he was petitioner Just like the Hidro to exist. protected ground. on account of a The specifically
Aguilera-Cota, Viktor “was
requirement
persecution
“on ac-
perceived
of his
adher
threatened because
political opinion
count of’
“does not mean
government’s cause.” 914 F.2d
ence to the
persecution solely on account of the vic-
part
guard
was
of a new
at 1379. Viktor
is,
political
opinion.
tim’s
That
conclu-
government
within the
that re
Ukrainian
persecution
sion that a cause of
is econom-
system
to the old
fused to succumb
necessarily imply
ic does not
there
corruption
acquiescence
that allowed
persecu-
cannot exist other causes of the
Hidro to
companies
operate.
like
Borja
tion.”
reports make clear that
Department
State
(9th Cir.1999) (en banc) (quotation marks
part
pervasive
Hidro’s scheme was
omitted; emphasis in original).
Grava,
politics.
structure of Ukrainian
In-
may
That the Hidro officials
have been
pointed
question
out that “the salient
part by personal
motivated in
retribution
whether Grava’s actions were directed to
doеs not mean that
did not also see
institution,
governing
only
ward a
enemy.
political
Viktor as their
We rec
against
corruption
individuals- whose
ognize
“many persecutors
aberrational.”
1045 “no court shall have § provides that imputed opinion of the because any determination jurisdiction that he has shown review He therefore Viktor. paragraph protected Attorney of a General under account on was (2)” asylum application that an alien’s for ground.12 1158(a)(3) (em- § untimely.1 8 U.S.C. is IV. added). majority’s the Because phasis failing to deter sum, by the IJ erred nar- reading impermissibly of the statute filing was late Viktor’s mine whether meaning “any determina- plain the rows extraordinary сircumstances. caused determinations, I some tion” to exclude Further, IJ’s determination ju- assuming its from respectfully dissent account targeted not on were Sagaydaks reviewing petitioner Viktor risdiction and supported not was ground protected asylum applica- claim that his Sagaydak’s However, because evidence. substantial is not tion time-barred. the IJ’s de supports evidence substantial Here, male re- found “that the not were Sagaydaks termination asylum since he ineligible for spondent CAT, at supra see under to relief entitled until ... asylum for apply ... did not as to that petition deny we n. 4830 year after his arrival.” for than one more grant petition we claim. 1158(a)(2)(B) and C.F.R. § the BIA 8 (Citing so that and remand part review in 208.4(a)(2).) cir mis- extraordinary the IJ also § Because whether may determine one-year excuse Vik that the dead- takenly that would exist “believed cumstances one subject for within and not tor’s failure to was absolute line States, and in arriving go the United he not Maj. op. did exception,” satisfied Sagaydaks have whether rule on Viktor’s contention expressly to asylum and requirements remaining ex- extraordinary circumstances INS v. Ven 1158(a)(2)(D) removal.13 See withholding of applied to his § ception of 12, 16, 154 tura, 123 S.Ct. basis, majority 537 U.S. holds this On case. (2002). 272 L.Ed.2d ‘any failed to make determina- “that the IJ extraordinary cir- tion,’ evеn though DE- part, in GRANTED PETITION was raised issue cumstances REMANDED. part, NIED therefore, concludes, “that attorney,” and TASHIMA, concurring Judge, Circuit 1158(a)(3) case.” apply to this does dissenting part: part the IJ’s It holds that Maj. op. at 1040. the extraordi- to address expressly failure Reform and Immigration Illegal The awas tolling provision 1996, nary circumstances Responsibility Act Immigrant review, argument is moot. See tion Viktor’s trouble conclude that 12. Because we Ashcroft, political opinion, we of his Vukmirovic arose on account argument Cir.2004). his alternative not address need of his mem- targeted on account that he group” of "particular bership social timeliness elements tо the are There two tax auditors. honest First, requirement is the requirement. there within asylum application be filed IJ's deci- that the Sagaydaks claim 13. States. arrival in the United year of the alien's the BIA’s appropriate sion was not 1158(a)(2)(B). is also There 8 U.S.C. the IJ's deci- streamlining process because "extraordinary "changed circumstances” incorrect, the decision the errors in sion was permits toll- exception which circumstances” material, legal issues raised and the were U.S.C. period. ing C.F.R. See substantial. 1158(a)(2)(D). (e)(4)(I). grant peti- Because 1003.1 *11 claims, any Sagaydaks’ to make determination under withholding failure 1158(a)(2); therefore, removal. § that review is not disagree. I barred. already held that in deciding 1158(a)(3) applies, §
whether “we need
only determine whether the IJ acted under 1158(a)(2).”
section Hakeem v. (9th Cir.2001). And case, it is clear the IJ did so act. The America, UNITED STATES only requirement act under is Plaintiff-Appellee, 1158(a)(2); § not that every, he act under any particular, subdivision 1158(a)(2). Here, expressly de- CARDENAS, Martin Defendant- “ineligible termined that Viktor was Appellant. asylum” under the one-year bar of No. 03-10009. 1158(a)(2)(B). That he was mistaken in application 1158(a)(2), in believing United Appeals, States Court of tolling available, that no does not Ninth Circuit. mean that he did not act under Argued and Submitted March 2005. 1158(a)(2) in holding peti- that Viktor’s tion one-year provision. was barred 4,May Filed effect, majority reviewing is merits of the IJ’s ruling. time-bar It
holds, substance, that the IJ erred in his
determination tolling that no was available
and remands on that issue directs the
agency to amake redetermination of that
issue. I agree majority with the that “[n]ei-
ther the regulation statute nor the am-
biguous, and neither interpreted could be way other including an than extraordi-
nary-circumstances exception. The IJ
erred as a Maj. matter of law....” op. at
1041. But the fact that the IJ “erred aas
matter' of in applying law”
time-bar means that he made an erroneous
determination, not that he did not make
“any determination” at I all. therefore
respectfully dissent from Part II of the
majority opinion. do, however,
I fully concur in Part III of
the majority opinion, the remainder opinion pertains as it insofar
Nataliya Sagaydak’s claim