                                                                              FILED
                             NOT FOR PUBLICATION                              DEC 28 2010

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



                             FOR THE NINTH CIRCUIT


EDWIN AJQUI MUNOZ,                               No. 06-74075

               Petitioner,                       Agency No. A078-061-698

  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 November 4, 2010
                             San Francisco, California

Before:        KOZINSKI, Chief Judge, RYMER, Circuit Judge, and KENNELLY,
               District Judge.**

       Our prior decision dismissed the asylum portion of Ajqui’s petition because

this court lacked jurisdiction to review a determination that an application was not

timely filed. See Ramadan v. Gonzales, 427 F.3d 1218, 1222 (9th Cir. 2005). That


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
            The Honorable Matthew F. Kennelly, United States District Judge for
the Northern District of Illinois, sitting by designation.
was not a judgment on the merits that is subject to res judicata. See Poblete

Mendoza v. Holder, 606 F.3d 1137, 1140 (9th Cir. 2010); Cook v. Peter Kiewit

Sons Co., 775 F.2d 1030, 1035 (9th Cir. 1985). Nor does the law of the case

preclude review, since intervening cases make clear that we now have jurisdiction

over pure issues of law and mixed questions of law and fact underlying the

agency’s “extraordinary circumstances” determination. See, e.g., Husyev v.

Mukasey, 528 F.3d 1172, 1178–79 (9th Cir. 2008); see also United States v. Van

Alstyne, 584 F.3d 803, 813 (9th Cir. 2009) (intervening authority exception). And

the rule of the mandate is beside the point, as it does not limit “the scope of a

second appeal.” Van Alstyne, 584 F.3d at 813 n.10.

      The IJ erred by failing to consider whether Ajqui’s post-traumatic stress

disorder (PTSD), brought on by abuses he claims to have suffered in Guatemala,

excused him from filing his asylum application within one year. See 8 C.F.R.

§ 208.4(a)(5)(i). The BIA simply adopted the IJ’s decision with no further

analysis. We therefore remand for it to address the regulation and its application to

Ajqui’s case. The BIA should reassess the merits of Ajqui’s asylum claim if it

concludes that extraordinary circumstances excuse his late filing.

      We also remand for the agency to revisit its CAT determination, which was

based in part on the IJ’s conclusion that Ajqui had not testified credibly about his


                                           2
brother being harmed by the military one month before the hearing. That finding

lacked “a specific, cogent reason” to support it. Alvarez-Santos v. INS, 332 F.3d

1245, 1254 (9th Cir. 2003). The IJ found Ajqui’s testimony “contradictory, self-

serving and unconvincing” in part because Ajqui had not mentioned the incident

during direct examination. But Ajqui explained he did not realize the incident was

directly related to his case. The IJ also found that Ajqui offered conflicting reasons

for why the army picked up his brother. But Ajqui consistently maintained that his

brother was targeted because he was an indigenous Guatemalan, and simply added

that the army had mistaken his brother for him after apprehending him. The BIA

seemed to doubt that the army would have remembered Ajqui eight years after he

left. But, without any reasoned analysis, that would be “the sort of . . . speculation

that cannot be used to support an adverse credibility determination.” Singh v. INS,

292 F.3d 1017, 1024 (9th Cir. 2002).

      We do not know how the BIA would resolve the CAT claim if Ajqui were

deemed credible in relating what happened to his brother in 2003. Accordingly,

we remand for the agency to revisit CAT relief on the assumption that Ajqui

testified truthfully about that incident.

      PETITION GRANTED; REMANDED.




                                            3
                                                                                FILED
Ajqui-Munoz v. Holder                                                           DEC 28 2010
No. 06-74075                                                                 MOLLY C. DWYER, CLERK
                                                                              U.S. COURT OF APPEALS

RYMER, Circuit Judge, concurring in part and dissenting in part:

      I agree that we are not barred by res adjudicata, law of the case, or rule of

the mandate from reviewing Ajqui’s claim that the one-year bar applies to his

asylum claim, but I would dismiss it for lack of jurisdiction. I agree that we should

remand on the CAT claim.

      While the IJ did not cite 8 C.F.R. § 208.4(a)(5) in her oral decision, she did

identify the circumstances noted in the regulation, stating “Extraordinary

circumstances may include serious illness or mental or physical disability of

significant duration, legal disability, ineffective assistance of counsel, temporary

protected status, and filing problems.” Thus I cannot say, as a matter of law, that

the IJ ignored the regulation or its stipulation that “extraordinary circumstances”

may include serious illness or mental disability – the circumstance at issue here.

      As I read her decision, the IJ found that Ajqui presented conflicting

testimony on the reasons for delay in filing. Ajqui stated that he did not file on

time because he didn’t know how to apply, whereas his expert testified that Ajqui

failed to apply before he was arrested because of post-traumatic stress disorder and

fear of authorities. Therefore, the IJ concluded, Ajqui did not meet his burden of

establishing extraordinary circumstances for failing to file within one year of entry.
In my view, we lack jurisdiction to review this determination because the facts are

in dispute, so neither a pure issue of law nor a mixed question of law and fact is

presented. See Husyev v. Mukasey, 528 F.3d 1172, 1178-79 (9th Cir. 2008).




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