FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KHALID ME AL-MOUSA, 

Petitioner, No. 06-70638

v. Agency No. 

M A79-378-238 ICHAEL B. MUKASEY, Attorney

General, OPINION

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

December 5, 2007—San Francisco, California

Filed March 5, 2008

Before: Betty B. Fletcher, William C. Canby, Jr., and

Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge B. Fletcher;

Dissent by Judge Rawlinson

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COUNSEL

Robert B. Jobe (argued) and Fatma Marouf, Law Office of

Robert B. Jobe, San Francisco, California, for the petitioner.

Peter Keisler, Assistant Attorney General; David V. Bernal,

Assistant Director, and Collette J. Winston (argued), Office of

Immigration Litigation, U.S. Department of Justice, Washington, D.C., for the respondent. 

OPINION

B. FLETCHER, Circuit Judge: 

Khalid Al-Mousa, native of Sudan and citizen of Saudi

Arabia, petitions for review of the Board of Immigration

Appeals (“BIA”) decision dismissing the appeal from the

immigration judge’s (“IJ”) denial of his applications for asylum, withholding of removal and relief under the Convention

Against Torture (“CAT”). Al-Mousa asserted past persecution

and a fear of future persecution in Saudi Arabia on account

of his ethnicity or dark skin color. The BIA affirmed the IJ’s

findings that Al-Mousa’s asylum application was time-barred,

and that he failed to establish a credible claim for relief. AlMousa appeals, claiming he is excused from the one-year bar

AL-MOUSA v. MUKASEY 2041
because he was a minor and that the IJ’s adverse credibility

finding is unsupported by substantial evidence. 

[1] The REAL ID Act, 8 U.S.C. § 1252(a)(2)(D), provides

this court jurisdiction to review constitutional claims and

questions of law related to a final order of removal. Al-Mousa

was under twenty-one years old when he filed his application

for asylum. Immigration and Nationality Act regulations do

not define whether individuals under twenty-one years of age

are “minors” under 8 C.F.R. § 1208.4(a)(5)(ii) and the BIA

did not address the issue. Where the BIA has not yet considered an issue, the proper course is to remand to allow the BIA

to consider the issue in the first instance. INS. v. Ventura, 537

U.S. 12 (2002). Accordingly, we issue a limited remand to the

BIA to consider whether, as a matter of law, individuals under

twenty-one years of age are minors under 8 C.F.R.

§ 1208.4(a)(5)(ii). 

[2] Notably, Al-Mousa failed to argue exception from

timely filing requirements on the basis of his status as a minor

in the asylum application itself, before the IJ, or in his pro se

BIA appeal. Generally, when a petitioner fails to exhaust his

claim, the issue is waived. See Rojas-Garcia v. Ashcroft, 339

F.3d 814, 819 (9th Cir. 2003) (“Before a petitioner can raise

an argument on appeal the petitioner must first raise it before

the BIA or the IJ.”) (citing 8 U.S.C. §1252(d)). This lack of

exhaustion ordinarily precludes even review of the question of

law presented in Al-Mousa’s appeal because we lack jurisdiction to review a determination regarding timeliness of an asylum application made under 8 U.S.C. § 1158(a)(2). 

[3] However, we have previously recognized a number of

exceptions to the general rule requiring exhaustion. See, e.g.

Laing v. Ashcroft, 370 F.3d 994, 1000 (9th Cir. 2004) (listing

exceptions such as “where administrative remedies are inadequate or not efficacious, pursuit of administrative remedies

would be a futile gesture, irreparable injury will result, or the

administrative proceedings would be void.”) The law treats

2042 AL-MOUSA v. MUKASEY
minors differently from adults in many ways: their capacities,

disabilities, privileges, and liabilities in connection with contracts, torts, the protection of person and property, and

actions. See generally 42 Am. Jur. 2d Infants; see also

Restatement (Second) of Contracts § 7 cmt. b (1979); S. Cal.

Edison Co. v. Hurley, 202 F.2d 257 (9th Cir. 1953) (a minor’s

contracts or conveyances are voidable). Further, the law

requires that an action on behalf of a minor must be brought

either by his guardian or a next friend. 5 Williston on Contracts § 9:25 (4th ed. 1998); see also Pae v. Stevens, 256 F.2d

208, (9th Cir. 1958) (holding that common law does not

“place the burden upon the minor to personally intervene in

court proceedings.”) The BIA has not addressed whether a

petitioner’s status as a minor may also forgive his or her failure to exhaust a claim. 

[4] If the agency determines Al-Mousa was a minor at the

time of his application, this disability may provide an exception, also forgiving failure to exhaust his claim. Accordingly,

we further direct the BIA to address on remand the question

whether, if a petitioner under age twenty-one is viewed as a

minor, petitioner’s status as a minor may also forgive his or

her failure to exhaust a claim. 

We decline to address at this time the propriety of the

adverse credibility finding. 

REMANDED. 

RAWLINSON, Circuit Judge, dissenting: 

I respectfully dissent from the majority’s remand of this

case to the Board of Immigration Appeals “to consider

whether, as a matter of law, individuals under twenty-one

years of age are minors under 8 C.F.R. § 1208.4(a)(5)(ii).” 

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The reason for my dissent is simple. We have no jurisdiction to address the issue of whether individuals under the age

of twenty-one are minors because that issue was not

exhausted by Petitioner Khalid Al-Mousa. See Zhang v. Ashcroft, 388 F.3d 713, 721 (9th Cir. 2004) (“The petitioner’s

failure to raise an issue to the BIA constitutes a failure to

exhaust, depriving this Court of jurisdiction.”) (citation omitted). Although the majority disposition acknowledges the

exhaustion requirement and the fact that the issue was not

raised “in the asylum application itself, before the IJ, or in his

pro se BIA appeal,” the disposition seeks to skirt the exhaustion requirement by rationalizing that “if the agency determines Al-Mousa was a minor at the time of his application,

this disability may provide an exception, also forgiving failure

to exhaust his claim.” Absolutely no supporting authority is

cited to bolster this novel attempt to bootstrap us into jurisdiction over an unexhausted issue. 

Because we have no jurisdiction over the issue of AlMousa’s purported minority, I would deny the petition

because the Immigration Judge’s adverse credibility determination was supported by substantial evidence.

2044 AL-MOUSA v. MUKASEY