                                                                           FILED
                           NOT FOR PUBLICATION                              APR 08 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



VERONICA ADRIAN,                                 Nos. 05-74977, 05-76059

             Petitioner,                         Agency No. A079-540-913

  v.
                                                 MEMORANDUM *
ERIC H. HOLDER JR., Attorney General,

             Respondent.



                     On Petitions for Review of an Order of the
                          Board of Immigration Appeals

                             Submitted April 6, 2010 **
                               Pasadena, California

Before: FERNANDEZ, SILVERMAN, and GRABER, Circuit Judges.

       Veronica Adrian petitions for review of (1) the Board of Immigration

Appeals’ affirmance of the immigration judge’s denial of Adrian’s application for

asylum and request for withholding of removal and CAT relief (No. 05–74977)

and (2) the BIA’s denial of her motion to reconsider (No. 05–76059). We have

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
jurisdiction pursuant to 8 U.S.C. § 1252. We grant in part Adrian’s petition for

review in No. 05–74977 and remand for further proceedings, and we deny as moot

her petition in No. 05–76059.

      We review de novo the BIA’s determination of purely legal issues. Shrestha

v. Holder, 590 F.3d 1034, 1048 (9th Cir. 2010). We review for substantial

evidence the BIA’s denial of asylum, withholding of removal, and CAT relief.

Ahmed v. Keisler, 504 F.3d 1183, 1191 (9th Cir. 2007).

      The BIA ruled that Adrian’s application for asylum was not timely filed and

that its tardiness was not excused by extraordinary circumstances. As an initial

matter, we have jurisdiction to review the BIA’s determination because the facts

are undisputed and a pure question of law is presented. 8 U.S.C. § 1252(a)(2)(D);

Husyev v. Mukasey, 528 F.3d 1172, 1179–81 (9th Cir. 2008).

      Adrian’s claim was that she was defrauded by the Chinese Indonesian

American Society (“CIAS”), which is not a law firm or an attorney. The CIAS

agreed to file Adrian’s application for $2000, confirmed receipt of her down

payment, and responded to Adrian’s repeated inquiries as to the status of her

application with assurances that it would be filed on time. Nonetheless, the

application was filed approximately two months late.




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      The BIA based its determination that extraordinary circumstances did not

excuse Adrian’s late filing solely on Adrian’s failure to comply with the procedural

requirements for bringing ineffective assistance of counsel claims under 8 C.F.R. §

1208.4(a)(5)(iii). But Adrian did not allege ineffective assistance of counsel; she

alleged that she was defrauded by non-lawyers. Section 1208.4(a)(5)(iii) does not

strictly fit this situation. Therefore, the BIA should have considered whether the

circumstances as a whole were sufficiently extraordinary, rather than requiring

strict compliance with the regulation.

      We therefore grant in part Adrian’s petition in No. 05–74977 and remand to

the BIA to reconsider Adrian’s claim of extraordinary circumstances. INS v.

Ventura, 537 U.S. 12, 17 (9th Cir. 2002) (per curiam).

      We also grant Adrian’s petition with respect to withholding of removal and

remand for the BIA to consider Adrian’s membership in a "disfavored group" in

light of our decision in Wakkary v. Holder, 558 F.3d 1049, 1062–65 (9th Cir.

2009), which had not been decided at the time of the BIA’s decision. We deny

Adrian’s petition as it relates to CAT relief because there is no evidence in the

record that Adrian is likely to be tortured if she returns to Indonesia. Finally, we

deny as moot Adrian’s petition for review of the BIA's denial of her motion for

reconsideration.


                                           3
      Petition for review in No. 05–74977 is GRANTED IN PART, DENIED IN

PART; REMANDED. Petition for review in No. 05–76059 is DENIED. Each

party shall bear its own costs on appeal.




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