FILED
NOT FOR PUBLICATION DEC 28 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDWIN AJQUI MUNOZ, No. 06-74075
Petitioner, Agency No. A078-061-698
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 November 4, 2010
San Francisco, California
Before: KOZINSKI, Chief Judge, RYMER, Circuit Judge, and KENNELLY,
District Judge.**
Our prior decision dismissed the asylum portion of Ajqui’s petition because
this court lacked jurisdiction to review a determination that an application was not
timely filed. See Ramadan v. Gonzales, 427 F.3d 1218, 1222 (9th Cir. 2005). That
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Matthew F. Kennelly, United States District Judge for
the Northern District of Illinois, sitting by designation.
was not a judgment on the merits that is subject to res judicata. See Poblete
Mendoza v. Holder, 606 F.3d 1137, 1140 (9th Cir. 2010); Cook v. Peter Kiewit
Sons Co., 775 F.2d 1030, 1035 (9th Cir. 1985). Nor does the law of the case
preclude review, since intervening cases make clear that we now have jurisdiction
over pure issues of law and mixed questions of law and fact underlying the
agency’s “extraordinary circumstances” determination. See, e.g., Husyev v.
Mukasey, 528 F.3d 1172, 1178–79 (9th Cir. 2008); see also United States v. Van
Alstyne, 584 F.3d 803, 813 (9th Cir. 2009) (intervening authority exception). And
the rule of the mandate is beside the point, as it does not limit “the scope of a
second appeal.” Van Alstyne, 584 F.3d at 813 n.10.
The IJ erred by failing to consider whether Ajqui’s post-traumatic stress
disorder (PTSD), brought on by abuses he claims to have suffered in Guatemala,
excused him from filing his asylum application within one year. See 8 C.F.R.
§ 208.4(a)(5)(i). The BIA simply adopted the IJ’s decision with no further
analysis. We therefore remand for it to address the regulation and its application to
Ajqui’s case. The BIA should reassess the merits of Ajqui’s asylum claim if it
concludes that extraordinary circumstances excuse his late filing.
We also remand for the agency to revisit its CAT determination, which was
based in part on the IJ’s conclusion that Ajqui had not testified credibly about his
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brother being harmed by the military one month before the hearing. That finding
lacked “a specific, cogent reason” to support it. Alvarez-Santos v. INS, 332 F.3d
1245, 1254 (9th Cir. 2003). The IJ found Ajqui’s testimony “contradictory, self-
serving and unconvincing” in part because Ajqui had not mentioned the incident
during direct examination. But Ajqui explained he did not realize the incident was
directly related to his case. The IJ also found that Ajqui offered conflicting reasons
for why the army picked up his brother. But Ajqui consistently maintained that his
brother was targeted because he was an indigenous Guatemalan, and simply added
that the army had mistaken his brother for him after apprehending him. The BIA
seemed to doubt that the army would have remembered Ajqui eight years after he
left. But, without any reasoned analysis, that would be “the sort of . . . speculation
that cannot be used to support an adverse credibility determination.” Singh v. INS,
292 F.3d 1017, 1024 (9th Cir. 2002).
We do not know how the BIA would resolve the CAT claim if Ajqui were
deemed credible in relating what happened to his brother in 2003. Accordingly,
we remand for the agency to revisit CAT relief on the assumption that Ajqui
testified truthfully about that incident.
PETITION GRANTED; REMANDED.
3
FILED
Ajqui-Munoz v. Holder DEC 28 2010
No. 06-74075 MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
RYMER, Circuit Judge, concurring in part and dissenting in part:
I agree that we are not barred by res adjudicata, law of the case, or rule of
the mandate from reviewing Ajqui’s claim that the one-year bar applies to his
asylum claim, but I would dismiss it for lack of jurisdiction. I agree that we should
remand on the CAT claim.
While the IJ did not cite 8 C.F.R. § 208.4(a)(5) in her oral decision, she did
identify the circumstances noted in the regulation, stating “Extraordinary
circumstances may include serious illness or mental or physical disability of
significant duration, legal disability, ineffective assistance of counsel, temporary
protected status, and filing problems.” Thus I cannot say, as a matter of law, that
the IJ ignored the regulation or its stipulation that “extraordinary circumstances”
may include serious illness or mental disability – the circumstance at issue here.
As I read her decision, the IJ found that Ajqui presented conflicting
testimony on the reasons for delay in filing. Ajqui stated that he did not file on
time because he didn’t know how to apply, whereas his expert testified that Ajqui
failed to apply before he was arrested because of post-traumatic stress disorder and
fear of authorities. Therefore, the IJ concluded, Ajqui did not meet his burden of
establishing extraordinary circumstances for failing to file within one year of entry.
In my view, we lack jurisdiction to review this determination because the facts are
in dispute, so neither a pure issue of law nor a mixed question of law and fact is
presented. See Husyev v. Mukasey, 528 F.3d 1172, 1178-79 (9th Cir. 2008).
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