                             NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                          FILED
                             FOR THE NINTH CIRCUIT                           APR 04 2011

                                                                         MOLLY C. DWYER, CLERK
                                                                          U .S . CO UR T OF AP PE A LS

MARIELI CESTARI-CUENCA and                       No. 09-74034
OSCAR ADRIAN FLORES-
CAMACARO,                                        Agency Nos.         A095-560-921
                                                                     A095-560-922
              Petitioners,

  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 February 11, 2011
                              Seattle, Washington

Before: B. FLETCHER, PAEZ, and IKUTA, Circuit Judges.




       Petitioners Cestari-Cuenca and Flores-Camacaro, husband and wife, petition

for review of the Board of Immigration Appeals' (BIA's) order dismissing their

appeal from an Immigration Judge's (IJ's) denial of their application for asylum,


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
withholding of removal, and relief under the Convention Against Torture (CAT).1

We have jurisdiction under 8 U.S.C. y 1252, and we grant the petition and remand

to the BIA for further proceedings.

      Petitioner concedes that she filed her asylum application after the one-year

statutory deadline for filing had expired. 'The regulations provide that, to be

excused from the one-year filing deadline, an applicant must first demonstrate

extraordinary circumstances, and then show 'that those circumstances were directly

related to the alienùs failure to file the application within the one-year period, and

that the delay was reasonable under the circumstances.'' Waµµary v. Holder, 558

F.3d 1049, 1057 (9th Cir. 2009) (quoting 8 C.F.R. y 208.4(a)(5)). For the reasons

discussed below, we conclude that the BIA erred in ruling that Cestari-Cuenca

failed to establish extraordinary circumstances, and we remand so that the agency

can consider in the first instance whether her delay in filing was reasonable.

      We conclude that Cestari-Cuenca exhausted her claim regarding

Tomaszewsµi's ineffective assistance of counsel before the IJ and BIA. See 8

U.S.C. y 1252(d)(1) ('A court may review a final order of removal only if . . . the

alien has exhausted all administrative remedies available to the alien as of right.').


      1
        Flores-Camacaro sought asylum and withholding relief through his wife,
Cestari-Cuenca, who was treated as the lead applicant. Therefore, references to
Cestari-Cuenca include Flores-Camacaro unless otherwise noted.

                                            2
We also conclude that Tomaszewsµi was ineffective in representing Cestari-

Cuenca and her husband. A petitioner seeµing to establish ineffective assistance of

counsel need only establish þthat counsel failed to perform with sufficient

competence, and . . . that she was prejudiced by counselùs performance.þ

Mohammed v. Gonzales, 400 F.3d 785, 793 (9th Cir. 2005). Cestari-Cuenca

intended to apply for asylum and would have done so but for the deficient legal

advice provided by Tomaszewsµi. This deficient advice prejudiced Cestari-Cuenca

when she missed the one-year deadline in which to file an application for asylum

after entering the country. See 8 U.S.C. y 1158 (a)(2)(B).

      Tomaszewsµi's ineffective assistance constituted extraordinary

circumstances that were directly related to Cestari-Cuenca's failure to file a timely

asylum application. See id. at y 1158(a)(2)(D); 8 C.F.R. y 208.4(a)(5)(iii)

(extraordinary circumstances include ineffective assistance of counsel). Given

Cestari-Cuenca's undisputed testimony that her failure to file a timely application

was due to Tomaszewsµi's advice, the BIA's conclusion that she did not

demonstrate 'extraordinary circumstances' was not supported by substantial




                                          3
evidence. See Viridiana v. Holder, 630 F.3d 942 (9th Cir. 2011); Lopez v. INS,

184 F.3d 1097 (9th Cir. 1999).2

      Because of its determination that Cestari-Cuenca did not establish

extraordinary circumstances, the BIA did not expressly address the separate

question of whether her delay in filing her asylum application after learning of

Tomaszewsµi's fraud was reasonable under the circumstances. See Waµµary, 558

F.3d at 1058 ('[T]he regulations maµe clear that the reasonableness determination

[under 8 C.F.R. y 208.4(a)(5)] must be made 'under the circumstances' on a case-

by-case basis.'). To the extent the BIA's decision could be construed as

determining that Cestari-Cuenca's delay was unreasonable, the record evidence is

insufficient to support any such ruling. At the asylum hearing, the IJ cut off

Cestari-Cuenca's attempt to explain the interactions between petitioners and

Salazar during the time after Tomaszewsµi's fraud was discovered. Moreover, it

was unrealistic to expect Salazar's associate to develop vigorously the facts that

would establish his own firm's ineffectiveness. Whether Salazar and his associates


      2
        Cestari-Cuenca's failure to comply with the requirements of 8 C.F.R. y
208.4(a)(5)(iii)(A)-(C), see also Matter of Lozada, 19 I. & N. Dec. 637 (BIA
1988), does not preclude her extraordinary circumstances argument because
Tomaszewsµi's ineffectiveness is clear on the face of the record and because she
had already been disbarred at the time Cestari-Cuenca and her husband discovered
the fraud. See Castillo-Perez v. INS, 212 F.3d 518, 525-26 (9th Cir. 2000).


                                          4
provided ineffective assistance of counsel and whether such assistance was the

cause of any delay can be addressed on remand.

      Accordingly, on remand, the agency should fully develop the record

regarding the circumstances of Cestari-Cuenca's delay in filing her asylum

application and, if warranted, the merits of her asylum claim. We also remand the

claims for withholding of removal, and relief under CAT so that petitioners, with

the assistance of their new counsel, may offer additional evidence and argument

regarding past persecution, withholding of removal, and relief under CAT.

      PETITION GRANTED and REMANDED for further proceedings




                                         5
                                                                              FILED
Cestari-Cuenca v. Holder, 09-74034                                               APR 04 2011
IKUTA, Circuit Judge, dissenting:                                         MOLLY C. DWYER, CLERK
                                                                           U .S . CO UR T OF AP PE A LS

      In order to be excused from complying with the one-year time bar for

applications for asylum, Cestari-Cuenca and Flores-Camacaro (Petitioners) were

required to show that extraordinary circumstances prevented them from filing a

timely asylum application. See 8 U.S.C. y 1158(a)(2)(B), (D); see also 8 C.F.R.

y 208.4(a)(5). Petitioners attempted to show that Tomaszewsµi's ineffective

assistance was the cause of their untimeliness, but as the IJ and BIA held,

Petitioners failed to establish the existence of extraordinary circumstances and did

not offer any explanation for the 17-month delay between the revelation of

Tomaszewsµi's ineffective assistance in February 2002 and the tardy filing of their

asylum applications in July 2003. See 8 C.F.R. y 208.4(a)(5). Accordingly, the

BIA properly denied their asylum claim. See Husyev v. Muµasey, 528 F.3d 1172,

1181-82 (9th Cir. 2008).

      On appeal, and for the first time, Petitioners argue that the 17-month delay

was caused by Salazar's ineffective assistance in failing to file their asylum

applications. Petitioners did not exhaust that argument before the IJ or the BIA, as

they were required to do. 8 U.S.C. y 1252(d)(1). Petitioners introduced their

ineffective assistance of counsel claim against Salazar in their second motion to



                                           1
reopen, but that claim was limited to Salazar's failure to file a timely direct appeal

to the BIA's January 28, 2005 order, and his failure to inform them that their

voluntary departure had not been tolled. Because Petitioners did not offer any

explanation for the 17-month delay to the IJ and BIA, and did not argue that

Salazar's ineffective assistance in failing to file their asylum applications was the

cause of that delay, those arguments are not exhausted, and we lacµ jurisdiction to

consider them. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004).

      Accordingly, I respectfully dissent.




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