Marieli Cestari-Cuenca v. Eric Holder, Jr.

MEMORANDUM *

Petitioners Cestari-Cuenca and Flores-Camacaro, husband and wife, petition for review of the Board of Immigration Ap *647 peals’ (BIA’s) order dismissing their appeal from an Immigration Judge’s (IJ’s) denial of their application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). 1 We have jurisdiction under 8 U.S.C. § 1252 , and we grant the petition and remand to the BIA for further proceedings.

Petitioner concedes that she filed her asylum application after the one-year statutory deadline for filing had expired. “The regulations provide that, to be excused from the one-year filing deadline, an applicant must first demonstrate extraordinary circumstances, and then show ‘that those circumstances were directly related to the alien’s failure to file the application within the one-year period, and that the delay was reasonable under the circumstances.’ ” Wakkary v. Holder, 558 F.3d 1049, 1057 (9th Cir.2009) (quoting 8 C.F.R. § 208.4 (a)(5)). For the reasons discussed below, we conclude that the BIA erred in ruling that Cestari-Cuenca failed to establish extraordinary circumstances, and we remand so that the agency can consider…

dissenting:

In order to be excused from complying with the one-year time bar for applications for asylum, Cestari-Cuenca and Flores-Camacaro (Petitioners) were required to show that extraordinary circumstances prevented them from filing a timely asylum application. See 8 U.S.C. § 1158 (a)(2)(B), (D); see also 8 C.F.R. § 208.4 (a)(5). Petitioners attempted to show that Tomaszewski’s ineffective assistance was the cause of their untimeliness, but as the IJ and BIA held, Petitioners failed to establish the existence of extraordinary circumstances and did not offer any explanation for the 17-month delay between the revelation of Tomaszewski’s ineffective assistance in February 2002 and the tardy filing of their asylum applications in July 2003. See 8 C.F.R. § 208.4 (a)(5). Accordingly, the BIA properly denied their asylum claim. See Hu-syev v. Mukasey, 528 F.3d 1172, 1181-82 (9th Cir.2008).

On appeal, and for the first time, Petitioners argue that the 17-month delay was caused by Salazar’s ineffective assistance in failing to file their asylum applications. Petitioners did not exhaust that argument before the IJ or the BIA, as they were required to do. 8 U.S.C. § 1252 (d)(1).…

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT APR 04 2011

MOLLY C. DWYER, CLERK

U .S . CO UR T OF AP PE A LS

MARIELI CESTARI-CUENCA and No. 09-74034

OSCAR ADRIAN FLORES-

CAMACARO, Agency Nos. A095-560-921

A095-560-922

Petitioners,

v. MEMORANDUM *

ERIC H. HOLDER, Jr., Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted February 11, 2011 Seattle, Washington

Before: B. FLETCHER, PAEZ, and IKUTA, Circuit Judges.

Petitioners Cestari-Cuenca and Flores-Camacaro, husband and wife, petition

for review of the Board of Immigration Appeals' (BIA's) order dismissing their

appeal from an Immigration Judge's (IJ's) denial of their application for asylum,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. withholding of removal, and relief under the Convention Against Torture (CAT).

We have jurisdiction under 8 U.S.C. y…