Viridiana v. Holder

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

WINNIE VIRIDIANA, 
Petitioner, No. 06-73335
v.
 Agency No.
A095-304-033
ERIC H. HOLDER JR., Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted
May 3, 2010—Pasadena, California

Filed January 19, 2011

Before: Betty B. Fletcher and Richard A. Paez,
Circuit Judges, and Donald E. Walter,* District Judge.

Opinion by Judge Paez

*The Honorable Donald E. Walter, Senior District Judge for the U.S.
District Court for Western Louisiana, Shreveport, sitting by designation.

1049
1052 VIRIDIANA v. HOLDER

COUNSEL

Gihan L. Thomas, Los Angeles, California, for petitioner
Winnie Viridiana.
 VIRIDIANA v. HOLDER 1053
Peter D. Keisler, Assistant Attorney General Civil Division,
Richard M. Evans, Assistant Director, Allen W. Hausman,
Senior Litigation Counsel Office of Immigration Litigation
Civil Division, Washington, D.C., for respondent Eric H.
Holder Jr., United States Attorney General.

OPINION

PAEZ, Circuit Judge:

Winnie Viridiana, an Indonesian citizen of Chinese
descent, petitions for review of the Board of Immigration
Appeals (“BIA”) order affirming an Immigration Judge’s
(“IJ’s”) denial of her claims for asylum and withholding of
removal. We have jurisdiction under 8 U.S.C. § 1252, and we
grant the petition and remand.

The principal issue that we address in this appeal is whether
the IJ correctly determined that Viridiana’s asylum applica-
tion was untimely. An alien seeking asylum must file an
application within one year of arrival in the United States. 8
U.S.C. § 1158(a)(2)(B); 8 C.F.R. § 208.4(a)(2)(i)(A). Viridi-
ana filed her application after she had been in the country for
one year and three months. The IJ denied Viridiana’s asylum
application as untimely because he concluded that she had not
established an exception to the one-year filing requirement,
and the BIA affirmed. Because the relevant historical facts are
undisputed, we have jurisdiction to review the IJ’s conclusion
that Viridiana’s asylum application was untimely without
exception. See Ramadan v. Gonzales, 479 F.3d 646, 650 (9th
Cir. 2007). Conducting such review, we conclude that Viridi-
ana’s delay in filing her asylum application was due to the
“extraordinary circumstance” of fraudulent deceit by an
immigration consultant, and that this circumstance directly
related to her failure to file the application within the one-year
deadline. 8 U.S.C. § 1158(a)(2)(D); 8 C.F.R. § 208.4(a)(5).
1054 VIRIDIANA v. HOLDER
Because Viridiana has established “extraordinary circum-
stances” for purposes of 8 U.S.C. § 1158(a)(2)(D), and filed
her asylum application within a reasonable time after such cir-
cumstance, we further conclude that Viridiana’s asylum appli-
cation was untimely but with exception. We therefore grant
the petition and remand for consideration of the merits of her
asylum application. With respect to Viridiana’s claim for
withholding of removal, we grant the petition and remand for
further consideration in light of our recent decision in Wak-
kary v. Holder, 558 F.3d 1049 (9th Cir. 2009).1

I. Background

Viridiana is an Indonesian citizen of Chinese descent.
Viridiana testified that when she lived in Indonesia, she was
harassed, robbed, attacked, and sexually assaulted on account
of her Chinese ethnicity. On one occasion, Viridiana was the
only Chinese-Indonesian person riding on a bus. Four Indone-
sian men on the bus targeted only her, dragged her off the bus
at knife-point, robbed her, attempted to rape her, and cut her
with the knife as she struggled to escape. On another occa-
sion, she was again targeted by Indonesian men while riding
public transportation. The men attacked and attempted to rob
Viridiana. According to Viridiana, in both instances she was
the only Chinese person around and the Indonesian men sin-
gled her out due to her Chinese ethnicity. Viridiana testified
that she did not report the two incidents to the police because
the police were hostile to ethnic Chinese-Indonesians. Follow-
ing these incidents, Viridiana became depressed, feared leav-
ing her home, and had to be escorted to and from her office
by her father.

Viridiana fled Indonesia and entered the United States on
January 30, 2001, with a visitor’s visa. Her visa authorized
1
In her initial application and before the agency, Viridiana sought relief
under the Convention Against Torture. She has, however, abandoned that
claim before our court. Accordingly, we do not address it.
 VIRIDIANA v. HOLDER 1055
her to remain in the country until July 29, 2001. In May 2001,
she consulted with Benny Muaja of BM & Associates
(“BM”), an immigration consultant and court-certified Indo-
nesian interpreter, to assist her in filing an application for
extension of her nonimmigrant status. She also sought his
assistance in filing an I-589 application for asylum and with-
holding of removal. Viridiana learned of BM from an adver-
tisement in a local Indonesian magazine. Viridiana paid
Muaja $1300 (in cash installments) for his assistance in filing
her visa extension and asylum applications. Viridiana under-
stood that Muaja was not a lawyer and that BM was not a law
firm.

In August 2001, Muaja, acting on behalf of Viridiana, sub-
mitted an application to extend Viridiana’s visa. In December
2001, the Immigration and Naturalization Service denied her
application.

In July 2001, Viridiana began calling Muaja to inquire
about the status of her asylum application. In her declaration
submitted at the hearing before the IJ, she stated:

Initially, Mr. Muaja would not return my calls. Later,
when confronted, Mr. Muaja did not answer my
questions directly about my request for proof of fil-
ing. Whenever I called, Mr. Muaja would make an
appointment, but when I appeared for the appoint-
ment, Mr. Muaja would say that he had not time to
see me. This happened five or six times from July
2001 until March 2002.

Despite Viridiana’s frequent calls and numerous appoint-
ments, Muaja never filed an application for asylum on Viridi-
ana’s behalf.

In March 2002, Viridiana contacted the law offices of War-
muth & Niu. In April 2002, with the aid of her new Warmuth
& Niu attorney, Viridiana filed her asylum application, which
1056 VIRIDIANA v. HOLDER
included a request for withholding of removal and relief under
the Convention Against Torture (“CAT”). By that point,
Viridiana had been in the country for one year and three
months, and her asylum application was three months late.

On July 12, 2002, the Immigration and Naturalization Ser-
vice issued to Viridiana a Notice to Appear for removal pro-
ceedings in immigration court. The IJ held a hearing on her
application for asylum and other forms of relief. Viridiana tes-
tified at the hearing. On October 10, 2003, the IJ delivered his
oral decision denying Viridiana’s asylum application as
untimely. Because the one-year time bar does not apply to
claims for withholding of removal and relief under CAT, the
IJ proceeded to address those claims on the merits. With
respect to both of these claims, however, the IJ found that
Viridiana failed to meet her burden of proof to warrant relief.
Accordingly, the IJ denied her application for withholding of
removal and relief under CAT. Viridiana filed a timely appeal
to the BIA. In June 2006, the BIA adopted and affirmed the
IJ’s decision. Viridiana timely petitioned for review.

II. Standard of Review

The BIA adopted and affirmed the IJ’s decision pursuant to
Matter of Burbano, 20 I. & N. Dec. 872, 874 (B.I.A. 1994).
“[W]here the BIA cites its decision in Burbano and does not
express disagreement with any part of the IJ’s decision, the
BIA adopts the IJ’s decision in its entirety.” Abebe v. Gon-
zales, 432 F.3d 1037, 1040 (9th Cir. 2005) (en banc). We
therefore review the IJ’s decision directly. Id.

The proper standard of review in immigration proceedings
depends on the nature of the decision under review. See
Manzo-Fontes v. INS, 53 F.3d 280, 282 (9th Cir. 1995). Fac-
tual determinations are reviewed for substantial evidence. See
Camposeco-Montejo v. Ashcroft, 384 F.3d 814, 818 (9th Cir.
2004). Under this deferential standard, the IJ’s determination
must be upheld unless the petitioner can show that a reason-
 VIRIDIANA v. HOLDER 1057
able fact finder would have been compelled to reach a differ-
ent conclusion. INS v. Elias-Zacarias, 502 U.S. 478, 481
(1992). Questions of law are reviewed de novo. Rodriguez-
Lariz v. INS, 282 F.3d 1218, 1222 (9th Cir. 2002). The IJ did
not make an explicit adverse credibility finding, and therefore
we take Viridiana’s testimony as true and further corrobora-
tion is not required. See Kataria v. INS, 232 F.3d 1107, 1113-
14 (9th Cir. 2000).

III. Discussion

[1] As noted above, under 8 U.S.C. § 1158(a)(2)(B), an
alien seeking asylum must file an application within one year
of arrival in the United States. See 8 C.F.R.
§ 208.4(a)(2)(i)(A). There are two exceptions to this rule: late
applications may be considered “if the alien demonstrates to
the satisfaction of the Attorney General either [1] the exis-
tence of changed circumstances which materially affect the
applicant’s eligibility for asylum or [2] extraordinary circum-
stances relating to the delay in filing an application.” 8 U.S.C.
§ 1158(a)(2)(D) (alterations added); 8 C.F.R. §§ 208.4(a)(4),
(5). Viridiana argues that she is eligible for relief under the
later exception, “extraordinary circumstances,” due to the
mishandling of her asylum application by an immigration
consultant. The IJ construed Viridiana’s argument as a claim
of ineffective assistance of counsel and determined that
although ineffective assistance of counsel is one of the enu-
merated “extraordinary circumstances,” which will excuse the
untimely filing of an asylum application, see 8 C.F.R.
§ 208.4(a)(5)(iii), Viridiana failed to demonstrate that she
qualified for the exception.

The issue of whether a petitioner has demonstrated “ex-
traordinary circumstances” warranting equitable tolling is a
mixed question of fact and law and, therefore, subject to our
review. See Husyev v. Mukasey, 528 F.3d 1172, 1181 (9th Cir.
2008) (holding that petitioner’s claim to “extraordinary cir-
cumstances” was a question of law and that we therefore have
1058 VIRIDIANA v. HOLDER
jurisdiction to review it); accord Dhital v. Mukasey, 532 F.3d
1044, 1049-52 (9th Cir. 2008).

[2] The government argues that, because relevant facts are
in dispute, we lack jurisdiction to review the BIA’s determi-
nation that Viridiana’s asylum application is time barred. See
Ramadan, 479 F.3d at 650. We disagree. The only facts that
might be considered in dispute were the terms of Viridiana’s
contract with Muaja. Indeed, the IJ noted Viridiana’s inability
to produce a copy of her contract as a weakness in Viridiana’s
claim. Yet, the government presented no competing evidence
concerning the terms of the contract and “cited no evidence
that can support a finding that [Viridiana’s] version of the
facts was incredible, nor do we find any. A reasonable fact
finder would therefore be compelled to find [Viridiana’s]
story credible.” Monjaraz-Munoz v. INS, 327 F.3d 892, 897
(9th Cir. 2003) (citation omitted). The IJ ultimately found
Viridiana credible and proceeded to consider the merits of her
withholding of removal claim. Because the relevant historical
facts are undisputed, we have jurisdiction to consider whether
Viridiana demonstrated “extraordinary circumstances” that
would excuse her untimely asylum application. See Ramadan,
479 F.3d at 648; see also, e.g., Lin v. Holder, 610 F.3d 1093,
1096 (9th Cir. 2010) (concluding that the facts were not in
dispute and reviewing an IJ’s determination that the alien’s
asylum application was untimely); Mutuku v. Holder, 600
F.3d 1210, 1212 (9th Cir. 2010) (reviewing an alien’s claim
that “extraordinary circumstances” excused her failure to
meet the one-year filing deadline for filing an application for
asylum).

A. Asylum

Viridiana admits she filed her asylum application almost
three months late. Viridiana argues, however, that the IJ mis-
construed her claimed “extraordinary circumstance” as one of
ineffective assistance of counsel under 8 C.F.R.
§ 208.4(a)(5)(iii). Viridiana argues that she did not allege
 VIRIDIANA v. HOLDER 1059
ineffective assistance of counsel; she alleged that she was
defrauded by a non-attorney immigration consultant. Section
208.4(a)(5)(iii) does not strictly encompass that claim. Thus,
Viridiana argues, the IJ should have considered whether the
circumstances that resulted in her delayed filing of her asylum
application as a whole were sufficiently “extraordinary.”
Applying this broad analysis, Viridiana argues that she quali-
fies for an exception to the one-year filing requirement due to
“extraordinary circumstances” as a result of the fraudulent
inaction and misrepresentations of immigration consultant
Muaja. See 8 U.S.C. § 1158(a)(2)(D).

[3] Under the governing regulation, the term “extraordi-
nary circumstances” “refer[s] to events or factors directly
related to the failure to meet the 1-year deadline,” and “may
excuse the failure to file within the 1-year period as long as
the alien filed the application within a reasonable period given
those circumstances.” 8 C.F.R. § 208.4(a)(5). The regulation
goes on to explain that such “extraordinary circumstances”
“may include but are not limited to” the following:

(i) Serious illness or mental or physical disability,
including any effects of persecution or violent harm
suffered in the past, during the 1-year period after
arrival;

(ii) Legal disability (e.g., the applicant was an unac-
companied minor or suffered from a mental impair-
ment) during the 1-year period after arrival;

(iii) Ineffective assistance of counsel, provided that:

(A) The alien files an affidavit setting forth
in detail the agreement that was entered
into with counsel with respect to the actions
to be taken and what representations coun-
sel did or did not make to the respondent in
this regard;
1060 VIRIDIANA v. HOLDER
(B) The counsel whose integrity or compe-
tence is being impugned has been informed
of the allegations leveled against him or her
and given an opportunity to respond; and

(C) The alien indicates whether a complaint
has been filed with appropriate disciplinary
authorities with respect to any violation of
counsel’s ethical or legal responsibilities,
and if not, why not;

(iv) The applicant maintained Temporary Protected
Status, lawful immigrant or nonimmigrant status, or
was given parole, until a reasonable period before
the filing of the asylum application;

(v) The applicant filed an asylum application prior to
the expiration of the 1-year deadline, but that appli-
cation was rejected by the Service as not properly
filed, was returned to the applicant for corrections,
and was refiled within a reasonable period thereafter;
and

(vi) The death or serious illness or incapacity of the
applicant’s legal representative or a member of the
applicant’s immediate family.

8 C.F.R. § 208.4(a)(5).

Here, the IJ construed Viridiana’s “extraordinary circum-
stances” claim as a claim of ineffective assistance of counsel,
citing 8 C.F.R. § 208.4(a)(5)(iii). The IJ concluded that based
on her claim of ineffective assistance of counsel, Viridiana
did not qualify for the exception and her asylum application
was therefore untimely. The IJ explained that Viridiana’s
claim of ineffective assistance of counsel failed for two rea-
sons: (1) because Viridiana did not claim that Muaja held
himself out as an attorney, citing Lopez v. INS, 184 F.3d 1097
 VIRIDIANA v. HOLDER 1061
(9th Cir. 1999) and Varela v. INS, 204 F.3d 1237 (9th Cir.
2000); and (2) because she did not file anything by way of
complaint with the appropriate disciplinary authorities,
implicitly relying on Matter of Lozada, 19 I. & N. Dec. 637,
639 (B.I.A. 1988). Both grounds on which the IJ relied to
reject Viridiana’s claim relate to the IJ’s incorrect character-
ization of Viridiana’s “extraordinary circumstance” as that of
ineffective assistance of counsel. Instead, Viridiana alleged
the “extraordinary circumstance” of immigration consultant
fraud, a claim which we conclude is distinct from ineffective
assistance of counsel.

With respect to the first reason given by the IJ for rejecting
Viridiana’s claim, i.e., the fact that Muaja did not hold him-
self out as an attorney, the IJ incorrectly relied on Lopez and
Varela. In Lopez, we concluded that the statute of limitations
to reopen deportation proceedings under 8 U.S.C.
§ 1252b(c)(3) (1994) was equitably tolled where the alien’s
late motion was the result of the deceptive actions of an immi-
gration consultant, i.e., a non-attorney, posing as an attorney.
See Lopez, 184 F.3d at 1100. After Lopez, in Varela, we con-
sidered whether the fraudulent inaction of a non-attorney,
who falsely held himself out as the assistant to an attorney,
excused—on equitable tolling grounds—an untimely second
motion to reopen. See Varela, 204 F.3d at 1240. We con-
cluded that it did. Id.; see also Fajardo v. INS, 300 F.3d 1018,
1021 (9th Cir. 2002) (citing Lopez and Varela and holding
that the limitation period for petitioner’s motion to reopen
“must be tolled until [petitioner] was aware of the harm
resulting from” the non-attorney immigration consultant’s
fraudulent action). Lopez and Varela are inapplicable to
Viridiana’s case because she neither alleges ineffective assis-
tance of counsel nor seeks equitable tolling.

We have considered allegations of fraudulent representa-
tion by a non-attorney immigrant consultant in another con-
text, which was not cited by the IJ in its decision, but which
arguably relates to the IJ’s reasoning. Under 8 U.S.C.
1062 VIRIDIANA v. HOLDER
§ 1229a(b)(5)(C)(I), an alien who is ordered removed in
absentia due to a failure to appear at his or her removal hear-
ing may allege “exceptional circumstances.” We have con-
cluded that one such “exceptional circumstance,” warranting
reopening of an alien’s in absentia order of removal, is inef-
fective assistance of counsel. See, e.g., Reyes v. Ashcroft, 358
F.3d 592, 596 (9th Cir. 2004) (considering an alien’s claim
that he suffered the “exceptional circumstance” of ineffective
assistance of counsel warranting relief from an in absentia
removal order pursuant to 8 U.S.C. § 1229a(b)(5)(C)(i)). We
have extended this principle to actions of an attorney’s agent.
In Monjaraz-Munoz, we held that an alien’s reasonable reli-
ance on an attorney’s agent, which resulted in the alien’s fail-
ure to appear at his deportation hearing, amounted to an
“exceptional circumstance.” 327 F.3d at 897-98. Thereafter,
however, we concluded that reliance upon the advice of an
immigration consultant—who the petitioner knew was not an
attorney and who was not the actual or purported agent or
assistant of an attorney—could not qualify as an “exceptional
circumstance” under the rubric of ineffective assistance of
counsel under 8 U.S.C. § 1229a(b)(5)(C)(i). See Hernandez v.
Mukasey, 524 F.3d 1014, 1020 (9th Cir. 2008).

This line of cases is also inapplicable. Both Monjaraz-
Munoz and Hernandez concerned an alien’s claim of ineffec-
tive assistance of counsel in the context of an in absentia
removal order. See Monjaraz-Munoz, 327 F.3d at 894, 896;
Hernandez, 524 F.3d at 1017. In these cases, the alien seeking
relief alleged an “exceptional circumstance” under 8 U.S.C.
§ 1229a(b)(5)(C)(i). The present case, by contrast, concerns
the timeliness of Viridiana’s application for asylum, a process
governed by 8 U.S.C. § 1158 and 8 C.F.R. § 208.4(a)(2).2
2
Under 8 U.S.C. § 1229a, an alien who, after written notice, fails to
appear at a removal proceeding can be “ordered removed in absentia,” and
such an order will only be rescinded if the alien demonstrates that the fail-
ure to appear was because of “exceptional circumstances.” Under 8 U.S.C.
§ 1158, an alien’s tardy application for asylum may be considered if the
alien demonstrates “extraordinary circumstances.” See 8 C.F.R.
§ 1208.4(a)(5).
 VIRIDIANA v. HOLDER 1063
[4] Although both 8 U.S.C. § 1229a as interpreted by this
court, and 8 U.S.C. § 1158 as implemented by 8 C.F.R.
208.4(a)(5), recognize an exception for ineffective assistance
of counsel, the exceptions are not equally easy to satisfy, and
“exceptional circumstances” are distinct from “extraordinary
circumstances.” See, e.g., Reyes, 358 F.3d at 596 (9th Cir.
2004) (considering the “exceptional circumstance” of ineffec-
tive assistance of counsel under 8 U.S.C.
§ 1229a(b)(5)(C)(i)); Tamang v. Holder, 598 F.3d 1083, 1089
(9th Cir. 2010) (considering the “extraordinary circumstance”
of ineffective assistance of counsel as defined by 8 § C.F.R.
208.4(a)(5)). Although this distinction might seem inconse-
quential as a matter of common parlance, these terms are
defined differently in the relevant statutes and regulations,
and the “exceptional circumstances” standard is more difficult
to satisfy. Compare 8 U.S.C. § 1229a(e)(1) (defining “excep-
tional circumstances” as “circumstances (such as battery or
extreme cruelty to the alien . . . but not including less compel-
ling circumstances) beyond the control of the alien.” (empha-
sis added)), with 8 C.F.R. § 208.4(a)(5) (defining
“extraordinary circumstances” to include, for example, an
error on an initial application, and requiring only that the cir-
cumstances not be “intentionally created” by the alien). Thus,
even if Viridiana would not be able to claim an “exceptional
circumstance” under 8 U.S.C. § 1229a on the basis of fraud
by an immigration consultant who she understood was a non-
attorney, she could still show an “extraordinary circumstance”
on the same basis for purposes of 8 U.S.C. § 1158(a)(2)(D)
and 8 C.F.R. § 208.4(a)(5). Therefore, the Lopez line of cases,
which concern equitable tolling, and the cases arising under
8 U.S.C. § 1229a, which concern in absentia removal orders,
are not dispositive of Viridiana’s claim.

[5] With respect to the IJ’s second ground for rejecting
Viridiana’s statutory tolling argument, the IJ faulted Viridiana
for not fully complying with the procedures for stating a
prima facie case of ineffective assistance of counsel as set
1064 VIRIDIANA v. HOLDER
forth by the BIA in Matter of Lozada, 19 I. & N. Dec. at 6393
; see also 8 C.F.R. § 208.4(a)(5)(iii) (listing the same three
procedural requirements under the “extraordinary circum-
stance” of ineffective assistance of counsel). Again, the IJ’s
incorrect characterization of Viridiana’s “extraordinary cir-
cumstance” as that of ineffective assistance of counsel
resulted in an attempt to hold her claim up to ill-fitting stan-
dards. Matter of Lozada concerns an allegation of deficient
assistance by an attorney. The third requirement under Matter
of Lozada is that the alien report to the “appropriate disciplin-
ary authorities . . . any violation of counsel’s ethical or legal
responsibilities.” 19 I. & N. Dec. at 639. Here, Viridiana was
never under the impression that Muaja was “counsel,” nor
was there an obvious disciplinary authority, analogous to a
bar association, to whom she could have reported Muaja’s
fraudulent actions. It was error to require Viridiana to comply
with Matter of Lozada when she sought an exception under 8
U.S.C. § 1158 and 8 C.F.R. § 208.4(a)(5) for the circumstance
of immigration consultant fraud, not ineffective assistance of
counsel.

Although the IJ construed Viridiana’s claim of “extraordi-
nary circumstances” as an ineffective assistance of counsel
claim, Viridiana herself did not. Rather, she argued that she
was entitled to statutory tolling for the “extraordinary circum-
stance” of fraud by an immigration consultant. In fact, in her
3
Lozada’s procedural requirements are:
The alien files an affidavit setting forth in detail the agreement
that was entered into with counsel with respect to the actions to
be taken and what representation counsel did or did not make to
the respondent in this regard; (b) The counsel whose integrity or
competence is being impunged has been informed of the allega-
tions leveled against him or her and given an opportunity to
respond; and (c) The alien indicates whether a complaint has
been filed with appropriate disciplinary authorities with respect
to any violation of counsel’s ethical or legal responsibilities, and
if not, why not.
19 I. & N. Dec. at 639.
 VIRIDIANA v. HOLDER 1065
brief to the BIA, Viridiana expressly argued that the IJ “cited
an immaterial portion of the Code of Federal Regulations,”
namely, 8 C.F.R. § 208.4(a)(5)(iii), which refers to the “ex-
traordinary circumstance” of ineffective assistance of counsel.
Viridiana further explained in her appeal to the BIA that:

[The IJ] noted that ineffective assistance of counsel
constitutes an “extraordinary circumstance” excep-
tion which will excuse the untimely filing of an asy-
lum application under 8 C.F.R. Section
209.4(a)(5)(iii) but that [Viridiana] failed to take the
necessary procedural steps to support such a claim
[i.e. the Lozada steps]. Those steps are inapplciable
to this case because BM is not a law firm, Muaja is
not an attorney, and BM and Muaja did not represent
themselves as such.

[6] We agree that the IJ misconstrued Viridiana’s claim
when he interpreted it as an ineffective assistance of counsel
claim. Irrespective of whether Viridiana can claim ineffective
assistance of counsel, Viridiana unequivocally claimed “ex-
traordinary circumstances” on the basis of immigration con-
sultant fraud. Notably, this ground for establishing
extraordinary circumstances under 8 U.S.C. § 1158(a)(2)(D)
is not precluded by the governing regulation. As noted above,
8 C.F.R. § 208.4 lists six circumstances that may be “extraor-
dinary.” The regulation is clear that “extraordinary circum-
stances” “may include but are not limited” to the six
circumstances that are listed, and that the list is not exhaus-
tive. 8 C.F.R. § 208.4. The preamble to the regulation imple-
menting the “extraordinary circumstances” exception to the
one-year bar further explains that “[t]he lists [of extraordinary
circumstances] merely provide examples of circumstances
that might result in a tardiness being excused.” 65 Fed. Reg.
76,124 (2000) (emphasis added). We therefore consider
whether Viridiana has successfully supported her claim of an
“extraordinary circumstance” due to immigration consultant
fraud, an unenumerated circumstance.
1066 VIRIDIANA v. HOLDER
Here, Viridiana testified that Muaja charged her $1300 to
file her application to extend her visa and prepare her asylum
application, which she paid in cash installments. Virdiana tes-
tified that she chose to use Muaja’s services because he spoke
Indonesian, he had a reputable looking advertisement in a
magazine, and she believed he could help her file her asylum
application. After Viridiana’s application to extend her visa
was denied, Viridiana diligently phoned Muaja to check on
the status of her asylum application. She testified that from
July 2001 to March 2002, she called Muaja five or six times
requesting proof of filing. Each time she phoned, Muaja
would make an appointment, but then when she appeared for
her appointment, he would say that he had no time to see her.
As Viridiana would later learn, Muaja never filed an asylum
application on her behalf. Finally, in March 2002, three
months after her visa extension had been denied, Viridiana
sought the assistance of a law firm, which helped her file her
application in April 2002.

[7] We conclude that Muaja’s actions were fraudulent, that
they directly related to Viridiana’s failure to file her applica-
tion within the one-year deadline, and that Viridiana filed her
application within a reasonable period of time after learning
of Muaja’s deceit. See 8 C.F.R. § 208.4(a)(5). Muaja charged
Viridiana a significant sum, one that would lead a reasonable
person, and certainly a refugee seeking asylum, to reasonably
believe Muaja’s assurances that he would provide assistance
and follow-through on his promise to complete and file her
asylum application. Furthermore, Muaja submitted Viridi-
ana’s visa extension application as agreed, and Muaja gave
Viridiana no indication that he would thereafter not complete
the remainder of their agreement and also file her asylum
application. Indeed, Viridiana’s diligent calls put Muaja on
notice that Viridiana expected him to file her application.
Viridiana set up at least five appointments to meet with Muaja
and showed up at his office each time, only to be turned away.
In sum, Muaja took advantage of Viridiana’s vulnerable posi-
 VIRIDIANA v. HOLDER 1067
tion, and he fraudulently charged her and misled her. His
fraud directly caused her asylum application to be filed late.

[8] For her part, Viridiana reasonably relied on the assur-
ances of Muaja, an individual who spoke her native language
and who held himself out as a member of an organization, i.e.,
BM, that regularly prepared asylum applications. The “ex-
traordinary circumstance” of immigration consultant fraud is
one that Viridiana did not “through [ ] her own action or inac-
tion” create, and the circumstance was “directly related to
[Viridiana’s] failure to file the application within the 1-year
period.” 8 C.F.R. § 208.4(a)(5). Viridiana repeatedly sought
proof of filing from Muaja both over the phone and by mak-
ing appointments with him and showing up at his office.
Roughly three months passed from the time the BIA denied
Viridiana’s request to extend her status in December 2001 to
the time she abandoned her attempt to work with Muaja and
sought out the services of a law firm. During this time, Viridi-
ana had attempted contact with Muaja, and her delay in filing
her asylum application, which ultimately resulted in her appli-
cation being three months late, “was reasonable under the cir-
cumstances.” 8 C.F.R. § 208.4(a)(5).

[9] The immigration consultant fraud Viridiana experi-
enced, and which caused her asylum application to be
untimely, constitutes an “extraordinary circumstance” war-
ranting statutory tolling of her asylum application deadline
under § 1158(a)(2)(D) and 8 C.F.R. § 208.4(a)(5). We there-
fore grant Viridiana’s petition, and remand her asylum claim
to the agency for consideration on the merits.

B. Withholding of removal

[10] Viridiana argues that she is eligible for withholding of
removal under 8 U.S.C. § 1231(b)(3).4 To qualify for with-
4
As noted above, the one-year deadline applies only to asylum applica-
tions, and, therefore, we have jurisdiction to review the agency’s final
order denying withholding of removal. See Shire v. Ashcroft, 388 F.3d
1288, 1294 (9th Cir. 2004).
1068 VIRIDIANA v. HOLDER
holding of removal, an alien must either establish past perse-
cution on account of at least one of the protected grounds, 8
C.F.R. § 1208.16(b)(1), or “demonstrate that it is more likely
than not that he would be subject to persecution on one of the
specified grounds.” Al-Harbi v. INS, 242 F.3d 882, 888 (9th
Cir. 2001) (internal quotation marks omitted). “This clear
probability standard for withholding of removal is more strin-
gent than the well-founded fear standard governing asylum.”
Id. at 888 (internal quotation marks and citation omitted). The
“standard has no subjective component, but, in fact, requires
objective evidence that it is more likely than not that the alien
will be subject to persecution upon deportation.” INS v.
Cardoza-Fonseca, 480 U.S. 421, 430 (1987). In Wakkary, 558
F.3d at 1064-65, we extended our holding in Sael v. Ashcroft,
386 F.3d 922 (9th Cir. 2004) to claims for withholding of
removal, concluding that one’s membership in a disfavored
group is pertinent in determining whether an alien is eligible
for such relief.

[11] Here, the IJ found that Viridiana was not eligible for
withholding of removal, reasoning that her two attacks did not
rise to the level of persecution and that she failed to demon-
strate that persecution on account of her ethnicity was “more
likely than not” in the event of her return. Al-Harbi, 242 F.3d
at 888. Neither the IJ nor the BIA, however, had the benefit
of our opinion in Wakkary when it ruled on and reviewed the
merits of Viridiana’s claim for withholding of removal. In
light of this intervening change in the law, we remand Viridi-
ana’s withholding of removal claim so the agency can recon-
sider it in light of Wakkary.

Finally, we note that in Viridiana’s petition for review she
also challenges the IJ’s finding that the two attacks she expe-
rienced in Indonesia did not rise to the level of persecution.
Because we have concluded that Viridiana’s asylum and with-
holding claims must be remanded for further consideration,
we need not address the issue of past persecution. In any
event, on remand, when addressing Viridiana’s asylum claim
 VIRIDIANA v. HOLDER 1069
on the merits, and in reconsidering her claim for withholding
of removal, the BIA and/or the IJ may find it necessary or
appropriate to revisit the issue of past persecution. We do not
foreclose this possibility. In the event the agency again con-
cludes that Viridiana did not suffer past persecution, she may
raise the issue in any future petition for review.

Petition GRANTED and REMANDED.