Toj-Culpatan v. Holder ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROGELIO TOJ-CULPATAN, 
Petitioner, No. 05-72179
v.
 Agency No.
A076-690-191
ERIC H. HOLDER JR., Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
March 1, 2009—San Francisco, California
Filed December 1, 2009
Before: Alex Kozinski, Chief Judge, Procter Hug, Jr. and
Carlos T. Bea, Circuit Judges.
Per Curiam Opinion
15667
TOJ-CULPATAN v. HOLDER 15669
COUNSEL
Lisa M. Calero, Esquire, Robert L. Lewis, Esquire, LAW
OFFICE OF ROBERT L. LEWIS, Oakland, California,
Charles E. Nichol, Esq., LAW OFFICES OF CHARLES E.
NICHOL, San Francisco, California, for the petitioner.
Antoinette Barksdale, Senior Litigating Attorney, U.S.
Department of Justice Civil Division-Appellate, Washington,
DC, Ronald E. LeFevre, OFFICE OF THE DISTRICT
COUNSEL, Department of Homeland Security, San Fran-
cisco, California, Mark Lenard Gross, Esquire, Deputy Chief
Counsel, DOJ - U.S. DEPARTMENT OF JUSTICE, Civil
Rights Division/Appellate Section, Washington, DC, for the
respondent.
OPINION
PER CURIAM:
Rogelio Toj-Culpatan, a native and citizen of Guatemala,
petitions for review of an order by the Board of Immigration
Appeals (“BIA”) summarily affirming the Immigration
Judge’s (“IJ”) denial of Petitioner’s requests for asylum, with-
holding of removal, and deferral of removal under the Con-
15670 TOJ-CULPATAN v. HOLDER
vention Against Torture. The IJ denied Petitioner’s applica-
tion for asylum because he did not file his asylum application
within one year after his entry into the United States, as
required by 8 C.F.R. § 208.4(a)(2), and because he did not
face any “extraordinary circumstances” excusing his late fil-
ing under 8 C.F.R. § 208.4(a)(5).
Petitioner entered the United States in February 1998 and
was immediately detained by the Immigration and Naturaliza-
tion Service. On March 10, 1998, Petitioner appeared before
an IJ and was given extra time to find an attorney. He was
also given a list of attorneys willing to take immigration cases
pro bono. At a hearing on March 25, 1998, Petitioner told the
IJ he “would have problems to go back to my country.” The
IJ asked Petitioner if he would like to apply for political asy-
lum and Petitioner said he would. The IJ gave him a Form I-
589 asylum application along with the instructions and told
him, with the help of an interpreter, that the application had
to be filled out in English. Petitioner said he understood and
agreed to bring the application to his next hearing on April 16,
1998.
At the April hearing, Petitioner, now represented by coun-
sel, had an asylum application to file. The IJ thanked him for
filling out his application in a timely manner, but rejected the
application because Petitioner filled it out in Spanish instead
of English, as required. See 8 C.F.R. § 208.3(a) (“An asylum
applicant must file Form I-589 . . . in accordance with the
instructions on the form”); Instructions for Form I-589 Appli-
cation for Asylum and for Withholding of Removal at 4
(“answers must be completed in English”). The IJ scheduled
Petitioner’s next hearing for May 14, 1998, and Petitioner
agreed to file the application in English at that time. Counsel
specifically told Petitioner that if Petitioner sent counsel the
application in Spanish, counsel would have it translated into
English for him.
The record does not reflect whether Petitioner failed to
send counsel the application in a timely manner or whether
TOJ-CULPATAN v. HOLDER 15671
counsel failed to have the application translated and timely
filed. We note, however, that Petitioner does not raise an inef-
fective assistance of counsel claim.
Petitioner then moved from Arizona to California. Conse-
quently his case was transferred. Still represented by the same
counsel, Petitioner finally filed his asylum application in
English at his first hearing in the new venue on September 7,
1999, approximately 7 months after the one year deadline of
February 1999.
[1] A late filing can be excused if “extraordinary circum-
stances” prevented the alien from filing an asylum application
within one year. 8 C.F.R. § 208.4(a)(5). The applicant bears
the burden of proving such circumstances existed “[t]o the
satisfaction of the asylum officer, the immigration judge, or
the Board . . . .” 8 C.F.R. § 208.4(a)(2)(i)(B). The IJ and the
BIA rejected Petitioner’s contention that he faced “extraordi-
nary circumstances” preventing him from filing an asylum
application within one year of his arrival into the United
States.
Although we do not have jurisdiction to review the BIA’s
factual determinations regarding Petitioner’s circumstances,
see Dhital v. Mukasey, 532 F.3d 1044, 1049 (9th Cir. 2008)
(per curiam), we do have jurisdiction to review the BIA’s
legal determination that the undisputed facts in Petitioner’s
case do not constitute “extraordinary circumstances.” See 8
U.S.C. § 1252(a)(2)(D); Dhital, 532 F.3d at 1049.
We must decide whether, as a matter of law, Petitioner
faced “extraordinary circumstances” justifying the untimely
filing of his asylum application where: (1) Petitioner does not
speak English; (2) Petitioner was detained for two months in
an immigration detention center; and (3) Petitioner’s case was
transferred after he moved from Arizona to California. We
hold that none of these circumstances, either alone or in com-
bination, constitute “extraordinary circumstances” justifying
15672 TOJ-CULPATAN v. HOLDER
the untimely filing of an asylum application, and we deny the
petition.1
The regulation excepting aliens who face “extraordinary
circumstances” from the one year deadline does not define the
term “extraordinary circumstances.” 8 C.F.R. § 208.4(a)(5).
The regulation does list several examples of what could con-
stitute “extraordinary circumstances,” including, but not lim-
ited to, a serious illness, a legal disability, or ineffective
assistance of counsel. Id. Petitioner does not contend that any
of the examples listed in 8 C.F.R. § 208.4(a)(5) apply in his
case.
[2] Petitioner has failed to meet his burden. There is simply
nothing “extraordinary” about the circumstances listed by
Petitioner that can justify his late filing. First, Petitioner fails
to explain how his inability to speak English is extraordinary
for an alien nor how it prevented him from timely filing an
asylum application in English, especially given that the gov-
ernment makes translators available to immigrants who do not
speak or read English. Petitioner does not contend that cir-
cumstances beyond his control prevented him from receiving
help from a translator. Petitioner also had an attorney who
stated on the record he would help Petitioner file a timely
application in English. Even though Petitioner did not speak
English, his attorney did. Further, we take judicial notice of
the fact that many immigrants who come to this country do
not speak English fluently.2 The inability to speak English
constitutes an ordinary, not extraordinary, circumstance for
1
We analyze Petitioner’s application for withholding of removal and
relief under the Convention Against Torture in an accompanying memo-
randum disposition.
2
U.S. Census Bureau, 2005-2007 American Community Surveys, avail-
able at http://factfinder.census.gov/home/saff/main.html?_lang=en (follow
“People” hyperlink; then follow “Origins and Language” hyperlink; then
follow “Characteristics Foreign Born Population” hyperlink) (estimating
that 62.2% of the population of people born in a foreign country who are
not U.S. citizens speak English less than “very well”).
TOJ-CULPATAN v. HOLDER 15673
immigrants. Many of these non-English speaking immigrants
timely file asylum applications in English.
[3] Second, Petitioner claims his detention should be con-
sidered an extraordinary circumstance, but he was detained
only from February to March of 1998. Petitioner does not
contend the immigration detention center in any way pre-
vented him from filing the application, and he had counsel
throughout his time there. Petitioner also fails to explain how
his two month detention prevented him from filing during the
months he was not detained.
[4] Last, Petitioner fails to explain how the transfer of his
case prevented him from filing a timely application. He did
not need to wait for a hearing to file an application. See 8
C.F.R. § 208.4(b) (“Form I-589, Application for Asylum and
Withholding of Removal, must be filed in accordance with the
instructions on the form”); Instructions for Form I-589 Appli-
cation for Asylum and for Withholding of Removal at 10
(instructing applicants currently in proceedings to file their
application with the Immigration Court without any restric-
tion that they wait for a hearing). Moreover, to qualify as an
exception to the one year rule, Petitioner must prove “that the
circumstances were not intentionally created by the alien
through his or her own action or inaction.” 8 C.F.R.
§ 208.4(a)(5). Petitioner caused this particular circumstance to
occur by moving to California from Arizona.
[5] Petitioner has failed to explain how any of these cir-
cumstances prevented him from filing an asylum application
in English within one year of his arrival nor how his delay
was justified. As a result, we hold that these circumstances are
not “extraordinary” as a matter of law. See Dhital, 532 F.3d
at 1050 (holding an alien failed as a matter of law to prove he
faced extraordinary circumstances where he had an unex-
plained delay of 22 months from the date he dropped out of
college and consequently lost his lawful status).
15674 TOJ-CULPATAN v. HOLDER
[6] Because Petitioner did not file an asylum application in
English within the one year deadline and no “extraordinary
circumstances” prevented him from filing on time, we deny
his petition for review of the BIA’s order affirming the IJ’s
denial of asylum.
PETITION FOR REVIEW DENIED.