Gasparyan v. Holder

When considering the "extraordinary circumstances" exception of an immigration appeal denial of asylum based on a one-year timeline expiration, the immigration law judge must determine that an extraordinary circumstance existed. Only then must the immigration judge use the three-factor test laid out in 8 C.F.R. § 1208.4(a)(5) that determines "whether extraordinary circumstances may excuse an untimely asylum application."

Zoya Gasparyan, an Armenian citizen, entered the United States from Armenia on a six-month work visa in October 2004, fleeing from her abusive husband. Gasparyan suffered a mental illness, which resulted from her experience with her abusive husband. Gasparyan overstayed her visa, and in August 2006 the INS initiated removal proceedings. During this time, she applied for “asylum, withholding of removal, and relief under the Convention Against Torture.” The ILJ denied her asylum application because the one-year deadline had passed, and determined that, despite her mental illness, Gasparyan was capable of filing a timely application and therefore an extraordinary circumstance did not exist under 8 C.F.R. § 1208.4(a)(5). He also determined that her untimely filing was due to funding and her inability to speak English, which are not “extraordinary circumstances.” Gasparyan appealed the decision to the Immigration Board of Appeals, which affirmed the ILJ’s determination. Gasparyan then appealed to the Ninth Circuit, arguing that the ILJ did not use the three-factor test under 8 C.F.R. § 1208.4(a)(5) to determine whether an “extraordinary circumstance” existed. The Ninth Circuit rejected her argument noting that the three-factor test is used only after it is established that extraordinary circumstances exist to determine “whether extraordinary circumstances may excuse an untimely asylum application.” The Court also held that the ILJ’s determination that Gasparyan did not suffer from an “extraordinary circumstance” was an un-reviewable factual dispute because jurisdiction only exists in 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). DISMISSED in part, and DENIED in part.