                                                                           FILED
                            NOT FOR PUBLICATION                             JUL 25 2014

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


SUNALI RASIKA WEERASEKARA,                       No. 12-73468

              Petitioner,                        Agency No. A097-762-993

  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 July 9, 2014
                                Portland, Oregon

Before: PREGERSON, PAEZ, and WATFORD, Circuit Judges.

       1. We have jurisdiction to review the Board of Immigration Appeals’ (BIA)

determination that “extraordinary circumstances” did not excuse Sunali

Weerasekara’s untimely asylum application, because the facts underlying her

untimely filing are undisputed. See 8 U.S.C. § 1158(a)(2)(D); Viridiana v. Holder,

646 F.3d 1230, 1234 (9th Cir. 2011).


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                                                             Page 2 of 3
      The BIA erred in concluding that Weerasekara’s mental health problems did

not amount to extraordinary circumstances “directly related” to Weerasekara’s

failure to timely file. 8 C.F.R. § 208.4(a)(5). The BIA reasoned that because

Weerasekara was eventually able to file for asylum despite her untreated mental

illness, she could have applied earlier, notwithstanding that illness. But a

petitioner need not show that an illness or disability incapacitated her in order to

show extraordinary circumstances. Rather, she need only show the delay is

“directly related” to the illness or disability. Id. Weerasekara submitted

uncontested evidence from her psychologist, who stated that it was “highly likely”

Weerasekara’s failure to timely file was the result of her inability to discuss the

traumatic events that formed the basis of her asylum application. The fact that

Weerasekara was eventually able to discuss those events is irrelevant to whether

she was able to discuss them at an earlier date.

      Weerasekara’s mental illness constituted extraordinary circumstances and

those circumstances were directly related to her failure to timely file her asylum

application. We remand to the BIA to determine whether the delay in filing was

“reasonable under the circumstances.” 8 C.F.R. § 208.4(a)(5); see also Wakkary v.

Holder, 558 F.3d 1049, 1057 (9th Cir. 2009).
                                                                            Page 3 of 3
       2. As to withholding of removal, the BIA erred in failing to take into

account Weerasekara’s psychological injuries as part of its past persecution

analysis. The BIA stated that Weerasekara “was not significantly injured” as a

result of the events underlying her withholding claim. Weerasekara did not

experience significant physical injuries, but she did experience post-traumatic

stress. “Persecution may be emotional or psychological, as well as physical.”

Mashiri v. Ashcroft, 383 F.3d 1112, 1120 (9th Cir. 2004). The BIA declined to

consider Weerasekara’s psychological injuries because “her mental health

problems preceded her political involvement.” Weerasekara’s depression preceded

her political involvement, but her post-traumatic stress did not. We remand to the

BIA to reconsider Weerasekara’s withholding claim in light of her psychological

injuries.

       3. The BIA did not err in finding that Weerasekara failed to show that “it is

more likely than not” that she would be tortured upon return to Sri Lanka. 8 C.F.R.

§ 208.16(c)(2). Weerasekara presented some evidence that torture occurs in Sri

Lanka, but she did not offer evidence that she is likely to be targeted or that torture

is used against members of her political party. See Wakkary, 558 F.3d at 1068.

       PETITION GRANTED in part, DENIED in part, and REMANDED.

       Each party shall bear its own costs.
