Sunali Weerasekara v. Eric Holder, Jr.

MEMORANDUM

1. We have jurisdiction to review the Board of Immigration Appeals’ (BIA) determination that “extraordinary circumstances” did not excuse Sunali Weerasekara’s untimely asylum application, because the facts underlying her untimely filing are undisputed. See 8 U.S.C. § 1158 (a)(2)(D); Viridiana v. Holder, 646 F.3d 1230, 1234 (9th Cir.2011).

The BIA erred in concluding that Weer-asekara’s mental health problems did not amount to extraordinary circumstances “directly related” to Weerasekara’s failure to timely file. 8 C.F.R. § 208.4 (a)(5). The BIA reasoned that because Weerasekara was eventually able to file for asylum despite her untreated mental illness, she could have applied earlier, notwithstanding that illness. But a petitioner need not show that an illness or disability incapacitated her in order to show extraordinary circumstances. Rather, she need only show the delay is “directly related” to the illness or disability. Id. Weerasekara submitted uncontested evidence from her psychologist, who stated that it was “highly likely” Weerasekara’s failure to timely file was the result of her inability to discuss the traumatic events that formed the basis of her asylum…