Khan Raza v. Holder

MEMORANDUM

Petitioner Muhammad Aziz Khan Raza petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his applications for asylum, withholding of removal, and protection under the Convention Against Torture. The BIA held that Petitioner failed to establish “extraordinary circumstances” excusing his late filing of an asylum application. The BIA also affirmed the immigration judge’s (“IJ”) adverse credibility determination. Because the BIA generally adopted the IJ’s conclusions and added its own comments, we review both decisions. Nuru v. Gonzales, 404 F.3d 1207, 1215 (9th Cir.2005). For the reasons stated below, we grant the petition and remand for further proceedings on an open record.

1. As the government now concedes, we have jurisdiction over the BIA’s “extraordinary circumstances” determination on undisputed underlying facts. Husyev v. Mukasey, 528 F.3d 1172, 1177-81 (9th Cir.2008).

Petitioner argued that he established “extraordinary circumstances,” because he received ineffective assistance of counsel. See 8 C.F.R. § 208.4 (a)(5)(iii) (recognizing “ineffective assistance of counsel” as one “extraordinary circumstance” and setting forth the…