Zoya Gasparyan v. Eric H. Holder Jr.

Filing

FILED OPINION (J. CLIFFORD WALLACE, JEROME FARRIS and JAY S. BYBEE) DISMISSED IN PART; DENIED IN PART. Judge: JF Authoring. FILED AND ENTERED JUDGMENT. [8519627]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ZOYA GASPARYAN ,

No. 08-73613
Petitioner,

v.

Agency No.
A099-824-314

ERIC H. HOLDER, JR., Attorney
General,
Respondent.

OPINION

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
January 17, 2013—San Francisco, California
Filed February 20, 2013
Before: J. Clifford Wallace, Jerome Farris,
and Jay S. Bybee, Circuit Judges.
Opinion by Judge Farris

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SUMMARY*

Immigration
The panel dismissed in part and denied in part a petition
for review of the Board of Immigration Appeals’ denial of an
asylum application as time-barred.
The panel held that because the underlying facts were in
dispute it lacked jurisdiction to review the merits of the
Board’s determination that petitioner failed to establish
extraordinary circumstances to excuse her untimely asylum
application. The panel held that the Board did not err in
failing to consider the three factors set forth 8 C.F.R.
§ 1208.4(a)(5), because those factors apply only after a
petitioner has demonstrated extraordinary circumstances.
The panel also explained that the three factors are conjunctive
and thus petitioner’s failure to meet the first two factors was
dispositive.

COUNSEL
Robert B. Jobe, Law Office of Robert B. Jobe, San Francisco,
California, for Petitioner.
Benjamin Mark Moss and Douglas E. Ginsburg, United
States Department of Justice, Civil Division, Office of
Immigration Litigation, Washington D.C., for Respondent.

*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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OPINION
FARRIS, Senior Circuit Judge:
Zoya Gasparyan, a native and citizen of Armenia,
petitions for review of the Board of Immigration Appeal’s
denial of her asylum application as time-barred. Gasparyan
originally entered the United States on a six-month visa,
which she overstayed. More than a year later, she applied for
asylum, withholding of removal, and protection under the
Convention Against Torture. An immigration judge found her
eligible for withholding of removal and CAT protection, but
denied her asylum application for failure to meet the one-year
filing deadline. See 8 U.S.C. § 1158(a)(2)(B). Gasparyan
appealed the denial of asylum, arguing that her untimely
application should be excused because she suffered from a
mental illness that constitutes an extraordinary circumstance
pursuant to 8 U.S.C. § 1158(a)(2)(D) and 8 C.F.R.
§ 1208.4(a)(5). The Board of Immigration Appeals denied the
appeal. Although Gasparyan asserted that her delay in filing
was due to mental health issues, the Board concluded that the
primary reason for the delay was Gasparyan’s lack of funds
and inability to speak English.
Gasparyan appeals the Board’s adverse extraordinary
circumstances determination. Additionally, she contends that
the Board erred by failing to analyze her extraordinary
circumstances claim using the appropriate “three-part test”
derived from 8 C.F.R. § 1208.4(a)(5). To the extent that
Gasparyan challenges the merits of the Board’s extraordinary
circumstances determination, we dismiss the petition for lack
of jurisdiction because the underlying facts are disputed.
Further, the Board did not err in its application of the

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regulations and we therefore reject Gasparyan’s claim to the
contrary.
I. Factual and Procedural Background
Gasparyan was born in Armenia and lived there
throughout her childhood and adolescence. At the age of 19
she was sexually assaulted by a friend, whom she married
shortly thereafter to avoid shaming her family. During their
marriage, Gasparyan’s husband repeatedly abused her.
On October 24, 2004, Gasparyan fled Armenia and
entered the United States on a six-month visa. Initially she
lived in Foster City, California with Gayane Topalian, a
family friend and former neighbor in Armenia. She also lived
in Palmdale, California with other family friends and distant
relatives for short periods of time. Topalian wrote a letter to
the INS on Gasparyan’s behalf asking for an extension of her
visa, but INS denied the request on August 24, 2005.
Gasparyan planned for her sister to send money and come
visit so she “could hire a lawyer and deal with [her]
immigration status.” However, Gasparyan’s sister had a car
accident and could not come or send money. When asked
during her asylum hearing what she was thinking after
receiving the denial of the extension, Gasparyan responded,
“I was waiting for money to come so I could apply.”
Gasparyan testified before an immigration judge that after
her arrival in the United States she felt troubled and unsafe.
She suffered from nightmares and other psychological trauma
related to the domestic violence she endured. While living
near Los Angeles, Gasparyan feared that her whereabouts
might be leaked to her husband, given the large Armenian
community in the area. Gasparyan spoke only Armenian and

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Russian and thus was unable to communicate with anyone
outside of the Armenian community. She rarely left the
houses where she lived, though she did regularly attend an
Armenian church.
In August 2005, the brother and sister-in-law of
Gasparyan’s husband invited her to live with them in San
Mateo, California. Her previous host never asked her to leave,
but Gasparyan agreed to move when her in-laws assured her
that they would not tell her husband of her location.
Gasparyan testified that her mental health quickly
deteriorated because the trauma she suffered as a
consequence of the domestic violence resurfaced while living
with her husband’s family. She repeatedly asked her in-laws
to help her normalize her immigration status. However, they
did not help and she did not apply for asylum during the year
she lived with them.
In August 2006, immigration officials took Gasparyan
and her in-laws into custody because of an immigration
problem that her in-laws had. Thereafter, the Immigration and
Naturalization Service initiated removal proceedings against
Gasparyan, during which she applied for asylum, withholding
of removal, and relief under the Convention Against Torture.
During the hearing before the immigration judge,
Gasparyan called as a witness Dr. Paul Good, a clinical and
forensic psychologist. Dr. Good had examined Gasparyan and
diagnosed her with an anxiety disorder and testified that she
had symptoms of post traumatic stress disorder stemming
from the abuse she suffered at the hands of her husband. Dr.
Good testified that pursuing a complex application process
might be difficult for Gasparyan due to her mental disorders.
He also testified that Gasparyan had informed him that she

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delayed filing for asylum because of lack of money, her
inability to speak English, and a sense of inhibition while
living with her brother-in-law.
The immigration judge found that Gasparyan was eligible
for withholding of removal and CAT protection based on the
domestic violence she suffered. However, the immigration
judge denied her application for asylum because she did not
file within the one-year deadline and she was not so severely
mentally disabled as to establish extraordinary circumstances
excusing the untimely filing. The immigration judge held that
“there [was] sufficient evidence in this record to establish that
respondent was able to make decisions for herself” and that
the reason she failed to file her application was “because she
did not have the requisite funds to pay for the services of
counsel to help her file that application.”
Gasparyan appealed the denial of asylum. The Board
dismissed her appeal. In so doing, the Board reasoned, inter
alia, that although the forensic psychologist testified that
Gasparyan might have trouble with a complex application
process, he “earlier indicated that her primary reasons for not
applying for asylum were a lack of funds and her inability to
speak English.” Thus, the Board held that Gasparyan failed to
present extraordinary circumstances excusing her untimely
asylum application.
II. Discussion
Before addressing the merits of Gasparyan’s petition, we
must first determine whether we have jurisdiction to review
the Board’s extraordinary circumstances determination.
Under the REAL ID Act of 2005, Pub.L. No. 109–13, div. B,
§ 106(a)(1)(A)(iii), 119 Stat. 231, 310 (2005) (codified in

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scattered sections of 8 U.S.C.), we have jurisdiction to review
an extraordinary circumstances determination only with
regard to constitutional claims and questions of law. See
8 U.S.C. § 1252(a)(2)(D); Husyev v. Mukasey, 528 F.3d 1172,
1178–79 (9th Cir. 2008). Questions of law include pure
questions of law as well as “mixed questions of law and fact.”
Husyev, 528 F.3d at 1178–79. Mixed questions of law and
fact refer to the application of law to “undisputed facts.” Id.
A. Jurisdiction to Review “Extraordinary
Circumstances” Determination Based on Disputed
Facts
To excuse her untimely asylum application, Gasparyan
must establish that her psychiatric problems constituted
extraordinary circumstances “directly related” to her delay in
filing for asylum within the meaning of 8 U.S.C.
§ 1158(a)(2)(D) and 8 C.F.R. § 1208.4(a)(5). See Singh v.
Holder, 656 F.3d 1047, 1054–56 (9th Cir. 2011) (discussing
the “directly related” requirement and noting that “[t]he
relevant inquiry is why [petitioner] delayed [her]
application”).
Gasparyan contends that “it can hardly be disputed” that
her psychiatric problems were directly related to her failure
to file for asylum within the one-year deadline. The record,
however, establishes otherwise. Gasparyan testified before
the immigration judge that she delayed filing for asylum not
because of her psychiatric problems, but because she lacked
the money to hire an attorney and initiate the process.
Similarly, Dr. Good testified that Gasparyan had explained to
him that her delay was due to lack of funds and the language
barrier, in addition to psychological trauma. At the close of
the hearing, Gasparyan’s counsel asserted that her mental

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disability was the cause of the delay, whereas the government
argued that the primary reason for the delay was monetary.
Thus, the record reveals that the relation between
Gasparyan’s mental disabilities and her failure to meet the
one-year deadline was far from an “admitted or established”
historical fact. Husyev, 528 F.3d at 1178.
The Board denied Gasparyan’s extraordinary
circumstances claim by resolving the underlying factual
dispute and finding that her primary reasons for delaying her
asylum application were lack of money and inability to speak
English. Our jurisdiction to review mixed questions of law
and fact is limited to instances where the underlying facts are
“undisputed.” Id. at 1178–79. Where the underlying facts are
disputed, as they are here, we lack jurisdiction to review the
Board’s extraordinary circumstances determination. See id.;
see also 8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D). We,
therefore, dismiss Gasparyan’s petition challenging the merits
of the Board’s extraordinary circumstances determination for
lack of jurisdiction.
B. Legal Standard for Analyzing “Extraordinary
Circumstances” Claim
Gasparyan argues that the Board erred as a matter of law
by applying an incorrect legal standard when it failed to
analyze her extraordinary circumstances claim using the
requisite “three-part test.” Whether the Board applied the
correct legal standard is a question of law, see RodriguezRivera v. U.S. Dep’t of Immigration & Naturalization,
848 F.2d 998, 1001 (9th Cir. 1988), and thus we have
jurisdiction pursuant to 8 U.S.C. § 1252(a)(2)(D).

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The three prongs of the test Gasparyan identifies are
derived from 8 C.F.R. § 1208.4(a)(5), which states that
extraordinary circumstances may excuse the filing of an
untimely asylum application if the applicant can demonstrate:
[1] that the circumstances were not
intentionally created by the alien through his
or her own action or inaction, [2] that those
circumstances were directly related to the
alien’s failure to file the application within the
1-year period, and [3] that the delay was
reasonable under the circumstances.
Gasparyan contends that the Board “made no findings”
regarding any of the three factors listed in § 1208.4(a)(5) and
therefore did not apply the pertinent regulation.
Gasparyan’s argument fails. The three factors do not
determine whether extraordinary circumstances existed, but
rather, are criteria for assessing whether extraordinary
circumstances may excuse an untimely asylum application.
Before assessing the three factors, the Board must first
determine that the alien’s circumstances were, in fact,
extraordinary. Section 1208.4(a)(5) contains a non-exhaustive
list of circumstances that may be considered extraordinary,
including “[s]erious illness or mental or physical disability.”
8 C.F.R. § 1208.4(a)(5)(i). An alien’s circumstances are
“extraordinary” if they fall within one of the examples listed
or are of a similar nature or seriousness. Only after the Board
concludes that the alien has presented extraordinary
circumstances must it consider the three factors to assess
whether those extraordinary circumstances excuse the
untimely filing of the asylum application. See C.F.R.
§ 1208.4(a)(5) (“Such circumstances may excuse the failure

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to file within the 1-year period as long as the alien filed the
application within a reasonable period given those
circumstances.” (emphasis added)).
The Board concluded that Gasparyan failed to present
extraordinary circumstances, adopting the immigration
judge’s finding that Gasparyan was not so severely mentally
disabled that she was unable to take responsibility to timely
file her asylum application. Since the Board concluded that
Gasparyan failed to present extraordinary circumstances, it
was unnecessary for it to consider the three factors.
Even if the Board was required to consider the three
factors, although the Board did not explicitly link each of its
reasons for denying her extraordinary circumstances claim to
one of the three factors in § 1208.4(a)(5), it did provide
reasons that correspond to the factors listed in the regulation.
For example, the Board noted that Gasparyan claimed that
she delayed in applying for asylum because she was living
with her husband’s brother, which rekindled the emotional
trauma caused by her abusive husband. However, the Board
found that she chose to live there “entirely voluntarily, as she
had a different place to live,” to wit, with Gayane Topalian.
This finding is linked to the first factor—that Gasparyan
intentionally contributed to the circumstances allegedly
causing her delayed filing. See 8 C.F.R. § 1208.4(a)(5).
Similarly, the Board observed that Dr. Good testified that
Gasparyan’s mental disability would cause her to have
difficulty with a complex application process such as asylum.
Nonetheless, the Board remarked that Gasparyan had
previously told Dr. Good that her primary reasons for
delaying the application were a lack of money and the
language barrier. Here, the Board was referring to the second
factor—that Gasparyan’s mental illness was not “directly

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related” to the delay in her asylum application. Id. The three
factors listed in 8 C.F.R. § 1208.4(a)(5) are conjunctive, and
thus Gasparyan’s failure to establish either of the first two
factors is dispositive of her extraordinary circumstances
claim. Id. (applicant bears burden of establishing first,
second, “and” third factor). The Board applied the correct
legal standard and gave legitimate reasons for its conclusion.
See id. We deny Gasparyan’s petition to the extent she seeks
relief on this ground.
Additionally, Gasparyan contends that the Board
committed legal error by basing its decision on extra-record
information. See Circu v. Gonzales, 450 F.3d 990, 993–95
(9th Cir. 2006) (en banc). The record does not support
Gasparyan’s argument. No extra-record information was the
basis of the Board’s decision.
III.

Conclusion

We DISMISS for lack of jurisdiction that portion of
Gasparyan’s petition that relies on disputed facts to challenge
the Board’s extraordinary circumstances determination. We
DENY Gasparyan’s petition to the extent she argues that the
Board failed to apply 8 C.F.R. § 1208.4(a)(5) in denying her
claim.
DISMISSED in part, DENIED in part.