U.S. Department of .Justice

Executive Office .for Immigration Review

Board of Immigration Appeals Office ofthe Clerk 5107 l.ash11rg Pikic, Sutte WOO Falt, CiluN:11, Jlirg/11/a .12041

Wennerstrom, Ann Law Office of Ann Wennerstrom 615 Second Ave.

OHS/ICE Office of Chief Counsel • SEA 1000 Second Avenue, Suite 2900 Seattle, WA 98104

Suite 350 Seattle, WA 98104

Name:

Date of this notice: 6/14/2016

Enclosed is a copy of the Board's decision and order in the above--referenced case. Sincerely,

D~~

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t1/lA)

Donna Carr Chief Clerk

Enclosure Panel Members: Pauley, Roger Wendtland, Linda S. O'Herron, Margaret M

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Userteam: Docket

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' U.S. Department of Justice

Decision of the Boat'd of Immigration Appeals

Ex6CUtl~ Office for Immigration Review

Falls Church, Virgiqia 22041

File: ~ t t l e , WA

Date:

JUN I\ 201& IN·REMOVAL PROCEEDINGS

APPEAL ON BEHALF OF RESPONDENT: Ann K. Wennerstrom. &quire

CHARGE:

Notice:

S~. •.237(~)(i')Qlj)~ Act [tfU.S.C. § 1227(a)(l)(B)] • In the United States in violation oflaw

APPLICATION: Asylum; withholding of removal; Convention Against Torture

The respondent, a native and citizen of Kenya, appeals the Immigration Judge's July 21, 2015, decision denying the respondent's application for asylum while granting her applications for withholding of removal and protection lUlder the Convention Against Torture. See sections 208 and 24l(b)(3) of the Immigra1ion and Nationality Act, 8 U.S.C. §§ 1158, 1231(b)(3); 8 C.F.R. §§ 1208.13, 1208.16-1208.18. The appeal will be sustained. The Board reviews an Immigration Judge's .finding:; of fact, including credibility determinations and the likelihood of future events, Wl.der a "clearly erroneous" standard. 8 C.F.R. § 1003.l(d)(3)(i); Matter ofZ-Z-0-, 26 I&N Dec. 586 (BIA 2015). We review all other issues, including questions of law, judgment, or discretion, wider a de novo standard. 8 C.F.R. § 1003. l(d)(3)(il). The Immigration Judge erred in concluding that the respondent did not demonstrate extraordinary circumstances sufficient to excuse the I-year filing deadline for asylum (I.J. at 5-7). The respondent and her therapist testified that her }ife in the United States from the time she entered in March 2007 until she filed her asylum application in March 2010 was characterized by a series of traumatic incidents and living situations and by poor advice concerning her immigration status (I.J. at 4-7; Tr. at 79-105, 201-02, 217-19). The therapist testified that various events during thls time repeatedly triggered and exacerbated the 1~ondent's diagnosed posttraumatic stress disorder ("PTSD") and caused her great difficulty in facing and addressing her fear of returning to Kenya (I.J. at 4-5; Tr. at 201, 218,.19). This testimony was corroborated by the testifying therapist's written declamtion and evaluations completed by two other mental health professionals (Exh. 4 at 14-19, 81-83, 86-90). In discounting the therapist's testimony and finding that the respondent appears to have been functioning well in American society prior to filing her application, the Immigration Judge did not adequately address these traumatic incidents that the respondent experienced in the United States and that negatively affected her ability to timely apply for asylum. Therefore, on our de novo review we conclude that the respondent established extraordinary circumstances relating to

her delay in filing her asylum application. Sections 208(a)(2)(B), (D) of the Act; 8 C.F.R. § 1208.4(a)(5)(i) (specifying that "extraordinary circumstances" include "serious ...mental...disability. including any effects of persecution or violent harm suffered in the past."). The Immigration Judge also erred in finding that, asswning the respondent established extraordinary circumstances, she did not file within a reasonable period given those circumstances (I.J. at 7). As noted above, the respondent's crecbole testimony, the testimony of her therapist, and the documents completed by her therapist and two other mental health prof~sionals demonstrate that the respondent suffered from chronic PTSD and other mental health issues during the approximately 3 years between her arrival in the United States and the filing of her asylum application. Further, the respondent credibly testified that she suffered a series of traumatic events and other setbacks throughout this time period, including receiving bad advice from the first immigration attorney she contacted, and her therapist testified that these events exacerbated her PTSD symptoms, especially her avoidance of anything that would cause her to think about returning to Kenya. The Immigration Judge is correct in stating that ineffective assistance of counsel may provide a basis for excusing a late-filed asylum application where the alien complies with 1he applicable regulatory requirements (I.J. at 6). See 8 C.F.R. § 1208.4(a)(5)(iii). However, regardless of whether the attorney's actions are formally cognizable as ineffective assistance of counsel, the · respondent and her therapist testified that the bad legal advice the respondent received was one of the incidents that triggered her avoidance symptoms and contributed further to delay that is ultimately attributable to the respondent's PTSD (Tr. at 101-02, 202). The Immigration Judge clearly erred in finding that the respondent first sought legal advice in 2008 (I.J. at 6). The record indicates that she contacted the first attorney in 2009 or 2010, several months before contacting the attorney who ultimately helped her file an affinnative asylum application, which was received by United States Citizenship and Immigration Services on March 31, 2010 (fl'. at 101-02; Exh. 3 at 63-64; Exh. 2). The respondent was also active in seeking mental health services during the early part of 2010, and she testified that she was then able to apply for asylwn because at that time her "mind was now getting straight'' (Tr. at 101; Exh. 4). Therefore, we conclude that the respondent filed her asylum application within a reasonable period of her.seeking and··receiving"m.ental he'iiltli' services that treated her PTSD symptoms, specifically the avoidance that affected her ability to apply fur asylum. Ultimately, we conclude that the respondent's delay in filing was reasonable given these extraordinary circumstances, and we therefore reverse the Immigration Judge's determination that the respondent did not establish an exception to the I-year filing deadline. Because we find no error in the Immigration Judge's grant of the respondent's application for wi1hholding of removal; which the Department of Homeland Security does not challenge on appeal, and because we find that on this record the respondent has demonstrated that she is deserving of a discretionary grant of asylum, we will sustain the respondent's appeal and remand to the Inunigration Judge for the entl'y of an order granting the respondent's application for asylwn. assuming successful completion of the required background checks. Given this .result, we decline to address the remainder of the respondent's appellate arguments. 2

ORDER: The appeal is sustained. FURTHER ORDER: Pursuant to 8 C,F.R § 1003.l(d)(6), the record is remanded to the Immigration Judge for the purpose of allowing the Department of Homeland Security the opportunity to complete or update identity, law enforcement, or security investigations or examinations, and further proceedings, if necessary, and for the entry of an order as provided by 8 C.F.R. § 1003.47(h). .

Board Member Roger A. Pauley respectfully mssents and would not find the Immigration Judge's findings of fact that undergird his conclusion that the asylum application is time barred (I.J.at 4-7) are clearly erroneous.

3

BIAu 6-14-16.pdf

Page 1 of 4. Wennerstrom, Ann. Law Office of Ann Wennerstrom. 615 Second Ave. Suite 350. Seattle, WA 98104. Name: U.S. Department of .Justice. Executive Office .for Immigration Review. Board of Immigration Appeals. Office of the Clerk. 5107 l.ash11rg Pikic, Sutte WOO. Falt, CiluN:11, Jlirg/11/a .12041. OHS/ICE Office ...

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