FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KHALID ME AL-MOUSA,
Petitioner, No. 06-70638
v.
Agency No.
A79-378-238
MICHAEL B. MUKASEY, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
December 5, 2007—San Francisco, California
Filed March 5, 2008
Before: Betty B. Fletcher, William C. Canby, Jr., and
Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge B. Fletcher;
Dissent by Judge Rawlinson
2039
AL-MOUSA v. MUKASEY 2041
COUNSEL
Robert B. Jobe (argued) and Fatma Marouf, Law Office of
Robert B. Jobe, San Francisco, California, for the petitioner.
Peter Keisler, Assistant Attorney General; David V. Bernal,
Assistant Director, and Collette J. Winston (argued), Office of
Immigration Litigation, U.S. Department of Justice, Washing-
ton, D.C., for the respondent.
OPINION
B. FLETCHER, Circuit Judge:
Khalid Al-Mousa, native of Sudan and citizen of Saudi
Arabia, petitions for review of the Board of Immigration
Appeals (“BIA”) decision dismissing the appeal from the
immigration judge’s (“IJ”) denial of his applications for asy-
lum, withholding of removal and relief under the Convention
Against Torture (“CAT”). Al-Mousa asserted past persecution
and a fear of future persecution in Saudi Arabia on account
of his ethnicity or dark skin color. The BIA affirmed the IJ’s
findings that Al-Mousa’s asylum application was time-barred,
and that he failed to establish a credible claim for relief. Al-
Mousa appeals, claiming he is excused from the one-year bar
2042 AL-MOUSA v. MUKASEY
because he was a minor and that the IJ’s adverse credibility
finding is unsupported by substantial evidence.
[1] The REAL ID Act, 8 U.S.C. § 1252(a)(2)(D), provides
this court jurisdiction to review constitutional claims and
questions of law related to a final order of removal. Al-Mousa
was under twenty-one years old when he filed his application
for asylum. Immigration and Nationality Act regulations do
not define whether individuals under twenty-one years of age
are “minors” under 8 C.F.R. § 1208.4(a)(5)(ii) and the BIA
did not address the issue. Where the BIA has not yet consid-
ered an issue, the proper course is to remand to allow the BIA
to consider the issue in the first instance. INS. v. Ventura, 537
U.S. 12 (2002). Accordingly, we issue a limited remand to the
BIA to consider whether, as a matter of law, individuals under
twenty-one years of age are minors under 8 C.F.R.
§ 1208.4(a)(5)(ii).
[2] Notably, Al-Mousa failed to argue exception from
timely filing requirements on the basis of his status as a minor
in the asylum application itself, before the IJ, or in his pro se
BIA appeal. Generally, when a petitioner fails to exhaust his
claim, the issue is waived. See Rojas-Garcia v. Ashcroft, 339
F.3d 814, 819 (9th Cir. 2003) (“Before a petitioner can raise
an argument on appeal the petitioner must first raise it before
the BIA or the IJ.”) (citing 8 U.S.C. §1252(d)). This lack of
exhaustion ordinarily precludes even review of the question of
law presented in Al-Mousa’s appeal because we lack jurisdic-
tion to review a determination regarding timeliness of an asy-
lum application made under 8 U.S.C. § 1158(a)(2).
[3] However, we have previously recognized a number of
exceptions to the general rule requiring exhaustion. See, e.g.
Laing v. Ashcroft, 370 F.3d 994, 1000 (9th Cir. 2004) (listing
exceptions such as “where administrative remedies are inade-
quate or not efficacious, pursuit of administrative remedies
would be a futile gesture, irreparable injury will result, or the
administrative proceedings would be void.”) The law treats
AL-MOUSA v. MUKASEY 2043
minors differently from adults in many ways: their capacities,
disabilities, privileges, and liabilities in connection with con-
tracts, torts, the protection of person and property, and
actions. See generally 42 Am. Jur. 2d Infants; see also
Restatement (Second) of Contracts § 7 cmt. b (1979); S. Cal.
Edison Co. v. Hurley, 202 F.2d 257 (9th Cir. 1953) (a minor’s
contracts or conveyances are voidable). Further, the law
requires that an action on behalf of a minor must be brought
either by his guardian or a next friend. 5 Williston on Con-
tracts § 9:25 (4th ed. 1998); see also Pae v. Stevens, 256 F.2d
208, (9th Cir. 1958) (holding that common law does not
“place the burden upon the minor to personally intervene in
court proceedings.”) The BIA has not addressed whether a
petitioner’s status as a minor may also forgive his or her fail-
ure to exhaust a claim.
[4] If the agency determines Al-Mousa was a minor at the
time of his application, this disability may provide an excep-
tion, also forgiving failure to exhaust his claim. Accordingly,
we further direct the BIA to address on remand the question
whether, if a petitioner under age twenty-one is viewed as a
minor, petitioner’s status as a minor may also forgive his or
her failure to exhaust a claim.
We decline to address at this time the propriety of the
adverse credibility finding.
REMANDED.
RAWLINSON, Circuit Judge, dissenting:
I respectfully dissent from the majority’s remand of this
case to the Board of Immigration Appeals “to consider
whether, as a matter of law, individuals under twenty-one
years of age are minors under 8 C.F.R. § 1208.4(a)(5)(ii).”
2044 AL-MOUSA v. MUKASEY
The reason for my dissent is simple. We have no jurisdic-
tion to address the issue of whether individuals under the age
of twenty-one are minors because that issue was not
exhausted by Petitioner Khalid Al-Mousa. See Zhang v. Ash-
croft, 388 F.3d 713, 721 (9th Cir. 2004) (“The petitioner’s
failure to raise an issue to the BIA constitutes a failure to
exhaust, depriving this Court of jurisdiction.”) (citation omit-
ted). Although the majority disposition acknowledges the
exhaustion requirement and the fact that the issue was not
raised “in the asylum application itself, before the IJ, or in his
pro se BIA appeal,” the disposition seeks to skirt the exhaus-
tion requirement by rationalizing that “if the agency deter-
mines Al-Mousa was a minor at the time of his application,
this disability may provide an exception, also forgiving failure
to exhaust his claim.” Absolutely no supporting authority is
cited to bolster this novel attempt to bootstrap us into jurisdic-
tion over an unexhausted issue.
Because we have no jurisdiction over the issue of Al-
Mousa’s purported minority, I would deny the petition
because the Immigration Judge’s adverse credibility determi-
nation was supported by substantial evidence.