Gasparyan v. Holder Jr., No. 08-73613 (9th Cir. 2013)
Annotate this CasePetitioner, a native and citizen of Armenia, petitioned for review of the BIA's denial of her asylum application as time-barred. Petitioner claimed that her untimely application should be excused because she suffered from a mental illness that constituted an extraordinary circumstance pursuant to 8 U.S.C. 1158(a)(2)(D) and 8 C.F.R. 1208.4(a)(5). To the extent that petitioner challenged the merits of the BIA's extraordinary circumstances determination, the court dismissed the petition for lack of jurisdiction because the underlying facts were disputed. Further, the BIA did not err in its application of the regulations and therefore, the court rejected petitioner's claim to the contrary. Accordingly, the court dismissed in part and denied in part.
Court Description: 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.
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