                                                                           FILED
                             NOT FOR PUBLICATION
                                                                            JAN 13 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                             FOR THE NINTH CIRCUIT


SNEZHANA JAKUPI,                                 No. 12-73035

              Petitioner,                        Agency No. A099-045-117

 v.
                                                 MEMORANDUM*
LORETTA E. LYNCH, Attorney General,

              Respondent.


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

                            Submitted November 18, 2015**
                               San Francisco, California

Before: KLEINFELD, WARDLAW, and PAEZ, Circuit Judges.



      Snezhana Jakupi, a native and citizen of Albania, petitions for review of the

decision of the Board of Immigration Appeals (“BIA”) dismissing her appeal from

the Immigration Judge’s (“IJ”) denial of her applications for asylum and

        *
             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).
withholding of removal. We grant the petition and remand to the BIA for further

proceedings.

1.    Jakupi arrived in the United States in March 2004, and she timely filed an

asylum application in June 2004. After the agency rejected her

application as incomplete, Jakupi hired an immigration consultant, who ultimately

submitted a complete application in August 2005. The IJ denied Jakupi’s

application for asylum because she had failed to file within a year of arrival in the

United States or demonstrate extraordinary circumstances sufficient to excuse her

late filing. The BIA affirmed.

2.    A late filing of an asylum application is excused if an applicant demonstrates

“either the existence of changed circumstances which materially affect the

applicant’s eligibility for asylum or extraordinary circumstances relating to the

delay in filing an application.” 8 U.S.C. § 1158(a)(2)(D); see also 8 C.F.R. §

208.4(a). Although the term “extraordinary circumstances” is not defined in the

statute or regulations, the regulations provide several examples. One such example

is when “[t]he applicant filed an asylum application prior to the expiration of the

1-year deadline, but that application was rejected by the Service as not properly

filed, was returned to the applicant for corrections, and was refiled within a

reasonable period thereafter.” 8 C.F.R. § 208.4(a)(5)(v). This court has also


                                           2
recognized that fraud by a non-attorney immigration consultant can constitute

extraordinary circumstances. Viridiana v. Holder, 646 F.3d 1230 (9th Cir. 2011).

3.    The BIA erroneously determined that Jakupi did not argue before the IJ that

the ineffective assistance of the immigration consultant caused her untimely filing.

During her hearing before the IJ, Jakupi testified that she met with the immigration

consultant twice over the course of six months, and that she believed that the

consultant had filed the application after their second meeting. Jakupi also testified

that she made follow-up phone calls to “Immigration” and to the consultant to

confirm that the application had in fact been filed. Given that Jakupi’s application

was returned as incomplete and she argued before the IJ that the consultant’s errors

contributed to her delay in filing, the BIA erred in concluding that Jakupi had not

sufficiently raised this argument before the IJ. Although the dissent’s proposed

timeline captures one possible version of events, the precise dates discussed therein

are not clearly established by the record. The BIA should address Jakupi’s

argument on remand and, if necessary, remand to the IJ for further factual finding.

3.    In light of our decision to remand Jakupi’s asylum claim, we also remand

her withholding of removal claim. In the event that Jakupi does not prevail on

remand, she may raise her withholding claim in any subsequent petition for review.

      Petition GRANTED and REMANDED.


                                          3
                                                                           FILED
Jakupi v. Lynch, No. 12-73035
                                                                            JAN 13 2016
                                                                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


Kleinfeld, Senior Circuit Judge, dissenting:



      I respectfully dissent. Jakupi’s asylum application was untimely. The BIA

did not abuse its discretion by concluding that she did not show exceptional

circumstances justifying her delay. See 8 C.F.R. § 208.4(a)(5)(v) (2005 ed.).



      Jakupi never argued before the IJ that her application was due to

“immigration consultant fraud.” See Viridiana v. Holder, 646 F.3d 1230 (9th Cir.

2011). There is no evidence the consultant did or said anything to delay Jakupi

from sending the application in on time. Rather, Jakupi said she thought her

application would be turned in after her second meeting with the consultant. That

meeting was well after the deadline had already passed. Here are the dates:

•     March 24, 2004: Jakupi enters the United States.

•     June 21, 2004: Jakupi submits a timely asylum application.

•     July 26, 2004: Application returned as incomplete.

•     January 26, 2005: Jakupi consults an immigration consultant.

•     June 26, 2005: Jakupi meets for the second time with the consultant.

•     August 15, 2005: Asylum application completed.
Thus she did not see her immigration consultant for six months after being notified

that her application was incomplete. Her completed application was not filed for

more than a year after she was notified that it was incomplete. She did not file a

complete application until five months after the one year deadline.



      I would also affirm the BIA’s denial of Jakupi’s withholding claim as

supported by substantial evidence.
