Jasvir Santokh v. Eric Holder, Jr.

MEMORANDUM

Jasvir Santokh petitions for review from the Board of Immigration Appeals’s (“BIA”) order dismissing his appeal from the Immigration Judge’s (“IJ”) denial of his petition for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We deny in part and grant in part Santokh’s petition for review and remand to the BIA for further proceedings.

We remand the asylum claim to the BIA for consideration of whether Santokh’s incarceration on state charges constitutes an extraordinary circumstance that excuses his late filing under 8 U.S.C. § 1158 (a)(2)(D). Although Santokh raised this argument in his brief in support of his asylum application, the IJ did not make any findings as to the extraordinary circumstances exception. The IJ stated, “Respondent just never claimed that he filed late and that there should be exceptional circumstances or changed circumstances.” The BIA, on the other hand, considered some of Santokh’s arguments in support of the extraordinary circumstances exception, but it did not make “any determination at all” regarding Santokh’s claim that “[t]he fact that he was taken in custody on January 3, 2002 restricted his ability…