Morshed Alam v. Merrick Garland

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MORSHED ALAM, No. 19-72744

Petitioner,

Agency No.

v. A215-826-397

MERRICK B. GARLAND, Attorney

General, OPINION

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted En Banc July 12, 2021*

Pasadena, California

Filed September 8, 2021

Before: Sidney R. Thomas, Chief Judge, and Johnnie B.

Rawlinson, Consuelo M. Callahan, Milan D. Smith, Jr.,

Mary H. Murguia, Morgan Christen, Paul J. Watford,

Andrew D. Hurwitz, Michelle T. Friedland, Mark J.

Bennett, and Daniel A. Bress, Circuit Judges.

Opinion by Chief Judge Thomas;

Concurrence by Judge Bennett

*

The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

2 ALAM V. GARLAND

SUMMARY**

Immigration

The en banc court overruled prior Ninth Circuit precedent

establishing and applying the single factor rule, which

required the court to sustain an adverse credibility

determination from the Board of Immigration Appeals, so

long as one of the agency’s identified grounds was supported

by substantial evidence.

An immigration judge denied Morshed Alam’s asylum

and withholding application on adverse credibility grounds,

identifying seven reasons to support the credibility

determination. The government argued before this court that

the credibility determination was supported by just two of the

seven grounds. A divided three-judge panel denied the

petition for review in a non-precedential memorandum

disposition, relying on only one of the seven grounds to

conclude that the IJ’s adverse credibility determination was

supported by substantial evidence. Judge Collins dissented,

disagreeing that substantial evidence supported the IJ’s

adverse credibility determination and criticizing this circuit’s

single factor rule. In considering the petition for rehearing en

banc, the panel requested that the parties provide

supplemental briefing as to whether there is a conflict

between the single factor rule and the REAL ID Act. Both

parties agreed that the single factor rule could not be

reconciled with the REAL ID Act.

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

ALAM V. GARLAND 3

The en banc court recounted the origin of the single factor

rule, which was rooted in the pre-REAL ID Act requirement

that an adverse credibility finding had to rest on at least one

ground that went “to the heart of the claim” to be sustained on

review. Prior to enactment of the REAL ID Act, this circuit

held that minor discrepancies, inconsistencies, or omissions

that did not go to the heart of an applicant’s asylum claim

could not constitute substantial evidence in support of an

adverse credibility finding. This circuit further held that it

was required to sustain an adverse credibility finding in an

asylum case, so long as one of the agency’s identified

grounds was supported by substantial evidence and went to

the heart of the claim. Thus, before the REAL ID Act, the

outcome of a petitioner’s challenge to the agency’s adverse

credibility finding depended entirely on whether the agency

had cited at least one valid, individual ground going to the

heart of the claim. If such a ground was absent, this court

could not sustain the finding; if it was present, it was required

to do so.

The REAL ID Act eliminated the “heart of the claim”

requirement and required IJs to consider all factors under the

totality of the circumstances in assessing credibility. The en

banc court wrote that although this circuit has recognized that

the REAL ID Act eliminated the “heart of the claim”

requirement, it has continued to adhere to the formulation that

sustaining an adverse credibility finding is required if

substantial evidence supports a single factor in the adverse

credibility analysis. The en banc court explained that by

clinging to one half of an abrogated rule out of context, this

circuit has been affirming a conclusion that, in most cases,

the IJ would not have made in the first place: that a single

factor suffices on its own for an adverse credibility

determination. Observing that no sister circuits have applied

4 ALAM V. GARLAND

the single factor rule post-REAL ID Act, and given the REAL

ID Act’s explicit statutory language requiring consideration

of the “totality of the circumstances” and “all relevant

factors,” the court concluded that the REAL ID Act

effectively abrogated the single factor rule. The en banc

court wrote that there is no bright-line rule under which some

number of inconsistencies requires sustaining or rejecting an

adverse credibility determination. Rather, review will always

require assessing the totality of the circumstances. Thus, to

the extent that Ninth Circuit precedents employed the single

factor rule or are otherwise inconsistent with this standard,

the court overruled those cases. The court remanded the case

to the three-judge panel to re-examine the petition for review

in light of its clarification of the standard for reviewing the

Board’s adverse credibility determinations.

Concurring, Judge Bennett agreed with the en banc

court’s opinion and judgment holding that the single factor

rule conflicts with the REAL ID Act. Judge Bennett wrote

separately to highlight other judge-made rules that are a part

of Ninth Circuit jurisprudence, which, given the decision in

this case, and the Supreme Court’s decisions in Garland v.

Ming Dai, 141 S. Ct. 1669 (2021), and United States v.

Palomar-Santiago, 141 S. Ct. 1615 (2021), may warrant

reconsideration en banc, including:

(1) United States v. Gonzalez-Villalobos, 724 F.3d 1125

(9th Cir. 2013) (recognizing exceptions to the exhaustion

requirements of 8 U.S.C. § 1326(d) where an individual

is deprived of his right to appeal to the Board). Judge

Bennett wrote that the en banc court should consider

whether these exceptions conflict with the Supreme

Court’s decision in Palomar-Santiago, which held that

each of the requirements of § 1326(d) is mandatory;

ALAM V. GARLAND 5

(2) Singh v. Holder, 643 F.3d 1178 (9th Cir. 2011) (a pre-

REAL ID Act case setting forth a categorical rule that a

petitioner’s lie always counts as substantial evidence for

an adverse credibility finding, except in the narrow

exception set forth Akinmade v. INS, 196 F.3d 951 (9th

Cir. 1999)). In Akinmade, this circuit held that a

petitioner’s lie is not necessarily probative of credibility

if the petitioner lied to enter the United States and escape

persecution. Judge Bennett wrote that the en banc court

should consider whether there is a reason to limit

consideration of the circumstances surrounding the

petitioner’s lie to only cases that fall within the Akinmade

exception, or whether the court should decide whether a

petitioner’s lie constitutes substantial evidence by looking

at the totality of the circumstances in every case, as the

INA directs in 8 U.S.C. § 1158(b)(1)(B)(iii);

(3) Mamigonian v. Biggs, 710 F.3d 936 (9th Cir. 2013)

(interpreting the jurisdiction-stripping provision of

§ 1252(a)(2)(B)(i), which states that “no court shall have

jurisdiction to review . . . any judgment regarding the

granting of relief under section 1182(h), 1182(i), 1229b,

1229c, or 1255 of this title,” to apply only to agency

determinations made on discretionary grounds). Judge

Bennett wrote that the en banc court should consider

whether limiting the jurisdiction stripping provision to

discretionary grounds ignores Congressional intent and is

at odds with the plain language of the statute, which states

“no court shall have jurisdiction to review . . . any

judgment” regarding the grant of relief pursuant to the

specified provisions;

(4) Singh v. Holder, 656 F.3d 1047 (9th Cir. 2011)

(concluding for purposes of the extraordinary

6 ALAM V. GARLAND

circumstances exception to the one-year asylum time bar,

8 U.S.C. § 1158(a)(2)(D), and 8 C.F.R. § 1208.4(a)(5),

that a filing delay of less than six months after an

applicant’s nonimmigrant status has expired is

presumptively reasonable). Judge Bennett wrote that the

presumption as to the reasonableness of a filing delay of

less than six months is based on flawed logic, explaining

that the regulation’s statement that a delay of six months

or more clearly is not reasonable does not mean that the

converse is also true, i.e., that a delay of less than six

months presumptively is—especially when the regulation

itself states that shorter delays should be “considered on

a case-by-case basis, with the decision-maker taking into

account the totality of the circumstances.”

COUNSEL

Mate Jurkovic and Chelsey Noelle Kelso, Goldstein &

Associates LLC, Pittsburgh, Pennsylvania, for Petitioner.

Brian M. Boynton, Acting Assistant Attorney General;

John W. Blakeley, Assistant Director; Greg D. Mack, Senior

Litigation Counsel; Elizabeth K. Fitzgerald-Sambou, Trial

Attorney; Office of Immigration Litigation, Civil Division,

United States Department of Justice, Washington, D.C.; for

Respondent.

ALAM V. GARLAND 7

OPINION

THOMAS, Chief Judge:

We voted to rehear this case en banc to reconsider our

“single factor rule,” which we have applied in considering

petitions for review from decisions by the Board of

Immigration Appeals (“BIA”). The single factor rule, as we

have applied it, requires us to sustain an adverse credibility

finding if “one of the [agency’s] identified grounds is

supported by substantial evidence.” Wang v. INS, 352 F.3d

1250, 1259 (9th Cir. 2003).

On rehearing en banc, we hold that the single factor rule

conflicts with the REAL ID Act of 2005, Pub. L. No. 109-13,

119 Stat. 231 (2005), and we overrule our prior precedent

establishing and applying it. We remand this case to the

three-judge panel to re-examine the petition for review in

light of our clarification of the standard for reviewing the

BIA’s adverse credibility determinations.

I

Morshed Alam, a Bangladeshi citizen, petitions for

review of the BIA decision denying his applications for

asylum and withholding of removal. Alam sought relief

based on his father’s membership in one of the country’s

opposition political parties. The immigration judge (“IJ”)

denied his application, making an express adverse credibility

determination. The IJ identified seven reasons supporting the

adverse credibility finding. However, the IJ also held that,

absent that finding, Alam would be entitled to a grant of

asylum. On appeal, the BIA adopted and affirmed the IJ’s

8 ALAM V. GARLAND

decision pursuant to Matter of Burbano, 20 I. & N. Dec. 872

(BIA 1994).

Alam filed a petition for review arguing, inter alia, that

the IJ’s adverse credibility determination was not supported

by substantial evidence. Alam did not challenge the single

factor rule. In response, the United States argued that the

BIA’s adverse credibility determination was supported by just

two of the seven grounds that the IJ had cited, and that

application of the single factor rule required sustaining the

adverse credibility finding.

A divided three-judge panel denied the petition for review

in a non-precedential memorandum disposition. Alam v.

Barr, 837 F. App’x 424 (9th Cir. 2020). It concluded that the

IJ’s adverse credibility determination was supported by

substantial evidence, relying on only one of the seven

grounds. Id. at 425–26. Judge Collins dissented, disagreeing

that substantial evidence supported the IJ’s adverse credibility

determination and criticizing our Circuit’s single factor rule.

Id. at 427–29 (Collins, J., dissenting).

In considering the petition for rehearing en banc, we

requested that the parties provide supplemental briefing as to

whether there is a conflict between a single factor rule and the

REAL ID Act. Both parties agreed that our single factor rule

could not be reconciled with the REAL ID Act. We

subsequently voted to rehear the case en banc. Because the

BIA affirmed on the basis of Matter of Burbano, we review

the IJ’s decision as if it were the BIA’s decision. See Kwong

v. Holder, 671 F.3d 872, 876 (9th Cir. 2011).

ALAM V. GARLAND 9

II

The single factor rule is rooted in our pre-REAL ID Act

requirement that an adverse credibility finding had to rest on

at least one ground that went “to the heart of the claim” to be

sustained on review. Prior to enactment of the REAL ID Act,

we concluded that “minor discrepancies, inconsistencies, or

omissions that d[id] not go to the heart of an applicant’s

asylum claim [could not] constitute substantial evidence” in

support of an adverse credibility finding. Chen v. INS,

266 F.3d 1094, 1098 (9th Cir. 2001), judgment vacated on

other grounds sub nom. INS v. Chen, 537 U.S. 1016 (2002);

see also Ceballos-Castillo v. INS, 904 F.2d 519, 520 (9th Cir.

1990) (distinguishing incidental misstatements from

misstatements that went to the heart of the petitioner’s claim).

We elaborated on that rule in Wang, holding that we were

required to sustain an adverse credibility finding in an asylum

case, “[s]o long as one of the [agency’s] identified grounds

[wa]s supported by substantial evidence and [went] to the

heart of [the] claim.” Wang, 352 F.3d at 1259; see also Li v.

Ashcroft, 378 F.3d 959, 964 (9th Cir. 2004) (“Although some

of the factors the IJ relied upon are either unsupported or

irrelevant, ‘[s]o long as one of the identified grounds is

supported by substantial evidence and goes to the heart of

[Li’s] claim of persecution, we are bound to accept the IJ’s

adverse credibility finding.’” (alterations in original) (quoting

Wang, 352 F.3d at 1259)). Before the REAL ID Act, the

outcome of a petitioner’s challenge to the agency’s adverse

credibility finding depended entirely on whether the agency

had cited at least one valid, individual ground going to the

heart of the claim. If such a ground was absent, we could not

sustain the finding; if it was present, we were required to do

so.

10 ALAM V. GARLAND

The REAL ID Act eliminated the “heart of the claim”

requirement and required IJs to consider all factors under the

totality of the circumstances in assessing credibility.

Specifically, it provided that:

Considering the totality of the circumstances,

and all relevant factors, a trier of fact may

base a credibility determination on the

demeanor, candor, or responsiveness of the

applicant or witness . . . , the consistency

between the applicant’s or witness’s written

and oral statements . . . , and any inaccuracies

or falsehoods in such statements, without

regard to whether an inconsistency,

inaccuracy, or falsehood goes to the heart of

the applicant’s claim, or any other relevant

factor.

8 U.S.C. § 1158(b)(1)(B)(iii) (emphases added).

In sum, under the REAL ID Act, credibility

determinations are made—and must be reviewed—based on

the “totality of the circumstances and all relevant factors,” not

a single factor. Thus, the REAL ID Act effectively abrogated

Wang’s contrary holding that an adverse credibility finding is

supported by substantial evidence if it is supported by a single

ground that goes to the heart of the claim. See Shrestha v.

Holder, 590 F.3d 1034, 1043 (9th Cir. 2010) (“The REAL ID

Act implemented an important substantive change concerning

the kinds of inconsistencies that may give rise to an adverse

credibility determination. Inconsistencies no longer need to

‘go to the heart’ of the petitioner’s claim to form the basis of

an adverse credibility determination.” (quoting

§ 1158(b)(1)(B)(iii))).

ALAM V. GARLAND 11

Although we recognized that the REAL ID Act eliminated

Wang’s “heart of the claim” requirement, we have continued

to adhere to the second part of Wang’s formulation, namely,

that sustaining an adverse credibility finding is required if

substantial evidence supports a single factor in the adverse

credibility analysis. See, e.g., Qiu v. Barr, 944 F.3d 837, 842

(9th Cir. 2019); Singh v. Lynch, 802 F.3d 972, 976 n.2 (9th

Cir. 2015); Jiang v. Holder, 754 F.3d 733, 738–39 (9th Cir.

2014). We have also relied on the single factor rule in

countless non-precedential decisions. By clinging to one half

of an abrogated rule out of context, we have been affirming

a conclusion that, in most cases, the IJ would not have made

in the first place: that a single factor suffices on its own for an

adverse credibility determination.

None of our sister circuits have applied the single factor

rule post-REAL ID Act. Rather, they have applied

the totality of the circumstances standard.1

1

See, e.g., Jabri v. Holder, 675 F.3d 20, 24–26 (1st Cir. 2012)

(remanding when one of three grounds for the adverse credibility

determination was valid because substantial evidence did not support the

overall credibility determination); Gao v. Sessions, 891 F.3d 67, 79–82 (2d

Cir. 2018) (remanding when some but not all of the grounds for the

adverse credibility determination were valid because substantial evidence

did not support the overall credibility determination); Alimbaev v. Att’y

Gen. of United States, 872 F.3d 188, 196 (3d Cir. 2017) (“[W]e will . . .

uphold [the agency’s adverse credibility] findings to the extent that they

are supported by reasonable, substantial, and probative evidence on the

record considered as a whole.” (internal quotation marks omitted)); Lin v.

Holder, 736 F.3d 343, 351 (4th Cir. 2013) (“Even the existence of only a

few such inconsistencies can support an adverse credibility

determination.” (emphasis added)); Suate-Orellana v. Barr, 979 F.3d

1056, 1060 (5th Cir. 2020) (“We defer to the agency’s credibility

determination unless, from the totality of the circumstances, it is plain that

no reasonable fact-finder could make such an adverse credibility ruling.”

12 ALAM V. GARLAND

Given the REAL ID Act’s explicit statutory language, we

join our sister circuits and hold that, in assessing an adverse

credibility finding under the Act, we must look to the “totality

of the circumstances[] and all relevant factors.”

§ 1158(b)(1)(B)(iii). There is no bright-line rule under which

some number of inconsistencies requires sustaining or

rejecting an adverse credibility determination—our review

will always require assessing the totality of the

(internal quotation marks omitted)); Slyusar v. Holder, 740 F.3d 1068,

1075 (6th Cir. 2014) (“Although the credibility determination no longer

includes a requirement that the inconsistency be material to the asylee’s

claim, we urge courts to remember that any inconsistencies or inaccuracies

must always be considered in light of the ‘totality of the circumstances.’

8 U.S.C. § 1158(b)(1)(B)(iii).”); Cojocari v. Sessions, 863 F.3d 616, 626

(7th Cir. 2017) (remanding where the agency’s adverse credibility finding

cited some valid grounds but “emphasized many other trivial matters that

d[id] not have a plausible bearing on [the petitioner’s] credibility” such

that the court had “no confidence that the [immigration] judge would have

reached the same adverse decision if she had focused on the one or two

details that might actually matter”); Li v. Holder, 745 F.3d 336, 341 (8th

Cir. 2014) (considering and rejecting an argument that “the BIA failed to

evaluate [the petitioner’s] credibility under the totality of the

circumstances” by discussing the multiple material inconsistencies the IJ

identified); Uanreroro v. Gonzales, 443 F.3d 1197, 1210–11 (10th Cir.

2006) (“When making a credibility determination, the IJ is required to

consider the totality of the circumstances . . . . [W]hile it was appropriate

for the IJ to consider [the petitioner’s untruthful] statements upon entry as

a factor in its credibility determination, it does not alone rise to the level

of substantial evidence to support an adverse decision on her claims for

relief.” (internal quotation marks omitted)); Wu v. U.S. Att’y Gen.,

712 F.3d 486, 494–98 (11th Cir. 2013) (remanding when one of the

grounds for the adverse credibility determination was valid because

substantial evidence did not support the overall credibility determination,

and observing that one “tangential inconsistency, standing alone and

considered in the totality of the circumstances, is insufficient to serve as

the sole basis for the IJ’s finding that Wu is without credibility” (internal

quotation marks omitted)).

ALAM V. GARLAND 13

circumstances. To the extent that our precedents employed

the single factor rule or are otherwise inconsistent with this

standard, we overrule those cases.

We remand this case to the three-judge panel for

reconsideration in light of the newly articulated standard for

reviewing adverse credibility determinations.

REMANDED to the three-judge panel.

BENNETT, Circuit Judge, concurring:

I concur in the court’s opinion and judgment holding “that

the single factor rule conflicts with the REAL ID Act of

2005.” Opinion at 7. I write separately to highlight other

judge-made rules that are a part of our jurisprudence, which,

given our decision today and the Supreme Court’s decisions

in Garland v. Ming Dai, 141 S. Ct. 1669 (2021), and United

States v. Palomar-Santiago, 141 S. Ct. 1615 (2021), we may

want to revisit en banc.1

1. In Palomar-Santiago, the Supreme Court reversed our

rule that excused defendants from satisfying the first two

1

I note also that the rules I highlight below are potential candidates

for reconsideration by three-judge panels pursuant to the directive of our

en banc court in Miller v. Gammie, 335 F.3d 889, 899–900 (9th Cir. 2003)

(en banc).

14 ALAM V. GARLAND

requirements of 8 U.S.C. § 1326(d)2 “if they were ‘not

convicted of an offense that made [them] removable.’”

141 S. Ct. at 1620 (alteration in original) (quoting United

States v. Ochoa, 861 F.3d 1010, 1015 (9th Cir. 2017)). In so

doing, the Court held “that each of the statutory requirements

of § 1326(d) is mandatory.” Id. at 1622.

Our controlling law holds “that where an alien is deprived

of his right to appeal to the BIA, he satisfies both

[§ 1326](d)(1) and (d)(2).” United States v. Gonzalez-

Villalobos, 724 F.3d 1125, 1130 (9th Cir. 2013).

The cases in which we have determined that

§ 1326(d)(1) and (d)(2) were satisfied can be

divided into three overlapping categories.

First, we have held that § 1326(d)(1) and

(d)(2) are satisfied when the IJ failed to

inform the alien that he had a right to appeal

his deportation order to the BIA. Second, we

have held that an IJ’s failure to inform the

2

Section 1326(d) provides that:

In a criminal proceeding under this section, an alien

may not challenge the validity of the deportation order

described in subsection (a)(1) or subsection (b) unless

the alien demonstrates that—

(1) the alien exhausted any administrative remedies that

may have been available to seek relief against the order;

(2) the deportation proceedings at which the order was

issued improperly deprived the alien of the opportunity

for judicial review; and

(3) the entry of the order was fundamentally unfair.

ALAM V. GARLAND 15

alien that he is eligible for a certain type of

relief also satisfies § 1326(d)(1) and (d)(2),

because an alien who is not made aware of his

or her apparent eligibility for relief has had no

meaningful opportunity to appeal the removal

and seek such relief. . . . Third, when an alien

has waived his right to appeal to the BIA, he

can nevertheless satisfy § 1326(d)(1) and

(d)(2) by showing that his waiver was not

considered and intelligent.

Id. at 1130–31 (quotation marks and citations omitted).

In each circumstance described above, we created an

exception to the exhaustion requirement delineated in

§ 1326(d)(1). This appears to conflict with the Supreme

Court’s Palomar-Santiago decision. See 141 S. Ct. at 1622.

Indeed, in Zamorano v. Garland, 2 F.4th 1213 (9th Cir.

2021), we remarked that Palomar-Santiago “casts doubt on

the continued vitality of our exhaustion excusal rule” where

an IJ fails to inform an alien of his right to appeal. Id.

at 1225. And in United States v. Bastide-Hernandez, 3 F.4th

1193 (9th Cir. 2021), we noted that those doubts apply to

each of the exhaustion excusal rules outlined in Gonzalez-

Villalobos. See id. at 1197. In my view, none of these rules

survive Palomar-Santiago.

2. In the adverse credibility determination context, we

have said that when a petitioner “admits that she made a

conscious decision to lie to the asylum office . . . [t]hat

always counts as substantial evidence supporting an adverse

credibility finding, unless the lie falls within the narrow

Akinmade [v. INS, 196 F.3d 951 (9th Cir. 1999)] exception.”

Singh v. Holder, 643 F.3d 1178, 1181 (9th Cir. 2011)

16 ALAM V. GARLAND

(emphasis added). Singh was a pre-REAL ID Act case, but

we have continued to apply the rule it established in countless

cases since. See, e.g., Wan v. Garland, 848 F. App’x 308,

309 (9th Cir. 2021) (“Under the REAL ID Act, deliberate

deception always counts as substantial evidence supporting

an adverse credibility finding, even if the truth turns out to be

irrelevant.” (quoting Singh, 643 F.3d at 1181) (cleaned up));

Zhang v. Barr, 827 F. App’x 767, 767 (9th Cir. 2020) (same);

Zhong v. Barr, 815 F. App’x 189, 189 (9th Cir. 2020) (same).

Sometimes, we have even decided that there is no need to

consider other factors if a petitioner has lied. See Yi v.

Sessions, 705 F. App’x 660, 661 (9th Cir. 2017); Rahman v.

Sessions, 686 F. App’x 465, 466–67 (9th Cir. 2017).

This categorical rule that a petitioner’s lie always counts

as substantial evidence for an adverse credibility finding,

except when the Akinmade exception applies, has no basis in

the text of the Immigration and Nationality Act (“INA”),

which instead requires consideration of the “totality of the

circumstances.” 8 U.S.C. § 1158(b)(1)(B)(iii). Indeed, the

exception is itself an acknowledgment that we cannot treat a

petitioner’s lie the same way in every case. In Akinmade, we

recognized that a petitioner’s lie is not necessarily probative

of credibility if the petitioner lied to enter the United States

and escape persecution. 196 F.3d at 955. That is, for cases

within this narrow exception, the petitioner’s circumstances

justify his lie. See id. at 955–56. But there is no reason to

limit our consideration of the circumstances surrounding the

petitioner’s lie to only cases that fall within the exception.

We should decide whether a petitioner’s lie constitutes

substantial evidence by looking at the totality of the

circumstances in every case, as the INA directs.

ALAM V. GARLAND 17

3. The INA provides that “no court shall have jurisdiction

to review . . . any judgment regarding the granting of relief

under section 1182(h), 1182(i), 1229b, 1229c, or 1255 of this

title.” 8 U.S.C. § 1252(a)(2)(B)(i). In Mamigonian v. Biggs,

710 F.3d 936 (9th Cir. 2013), we held that “district courts

have jurisdiction to hear cases challenging final agency

determinations respecting eligibility for the immigration

benefits enumerated in 8 U.S.C. § 1252(a)(2)(B)(i) made on

nondiscretionary grounds, provided there is no pending

removal proceeding in which an alien could apply for such

benefits.” Id. at 945 (emphasis added). In other words, we

interpreted the jurisdiction-stripping provision of

§ 1252(a)(2)(B)(i) to apply only to agency determinations

made on discretionary grounds.

Our rule in Mamigonian is at best questionable given that

the INA’s jurisdiction-stripping provision includes no

exception for nondiscretionary final agency determinations.

See 8 U.S.C. § 1252(a)(2)(B)(i). The plain language of the

statute, which must be enforced when there is no ambiguity,

Jimenez v. Quarterman, 555 U.S. 113, 118 (2009), is

unequivocal that “no court shall have jurisdiction to review

. . . any judgment” regarding the grant of relief pursuant to

the specified provisions. See 8 U.S.C. § 1252(a)(2)(B)(i)

(emphasis added). “Any” means “every—used . . . to indicate

one that is selected without restriction or limitation of

choice.” Any, Webster’s Third New International Dictionary

97 (1986). “Judgment” means “[a] court’s final

determination of the rights and obligations of the parties in a

case,” as well as “an equitable decree and any order from

which an appeal lies.” Judgment, Black’s Law Dictionary

970 (10th ed. 2014) (emphasis added). Thus, our

Mamigonian decision which construes § 1252(a)(2)(B)(i) as

not applying to agency determinations “made on

18 ALAM V. GARLAND

nondiscretionary grounds,” 710 F.3d at 945, is at odds with

the plain language of the statute and ignores Congress’s intent

that this jurisdiction-stripping provision apply to “any

judgment,” i.e., one selected without restriction.

Indeed, the Eleventh Circuit recently reversed its prior

position, which aligned with our Mamigonian decision, and

held that “[t]he statute means what it says[:] ‘no court shall

have jurisdiction to review’ ‘any judgment regarding the

granting of relief . . . .” Patel v. U.S. Att’y Gen., 971 F.3d

1258, 1262, 1273 (11th Cir. 2020) (en banc).3 The statutory

scheme as a whole also supports this interpretation given that

8 U.S.C. § 1252(a)(2)(D) restores appellate courts’

jurisdiction to review constitutional claims or questions of

law. See Patel, 971 F.3d at 1275. If Congress wanted

appellate courts to retain jurisdiction over agency

determinations made on nondiscretionary grounds, it could

have simply said so, like it did for constitutional questions or

questions of law. See id. at 1275–76.

4. 8 U.S.C. § 1158(a)(2)(D) instructs that an application

for asylum of an alien may be considered, notwithstanding

that the petitioner did not file within the one-year time limit,

or that the petitioner previously applied for asylum and had

such application denied, “if the alien demonstrates to the

satisfaction of the Attorney General . . . the existence of . . .

3

The Eleventh Circuit conducted a comprehensive analysis on the

definition of the word “judgment” and explained that any doubt as to its

meaning must be “resolved in favor of a more expansive meaning given

the modifying phrases ‘any’ and ‘regarding.’” Patel, 971 F.3d

at 1273–74. The court thus concluded that the jurisdiction-stripping

provision “precludes us from reviewing ‘whatever kind’ of judgment

‘relating to’ the granting of relief under the five enumerated sections.” Id.

at 1274.

ALAM V. GARLAND 19

extraordinary circumstances relating to the delay in filing an

application.” 8 C.F.R. § 1208.4(a)(5) defines “extraordinary

circumstances” as “events or factors directly related to the

failure to meet the 1-year deadline.” And “[s]uch

circumstances may excuse the failure to file within the 1-year

period as long as the alien filed the application within a

reasonable period given those circumstances.” 8 C.F.R.

§ 1208.4(a)(5).

“We have held that a filing delay of less than six months

after an applicant’s nonimmigrant status has expired is

presumptively reasonable.” Singh v. Holder, 656 F.3d 1047,

1056 (9th Cir. 2011). “We based this holding on [65 Fed.

Reg. 76121, 76123–24],” which provides: “Clearly, waiting

six months or longer after expiration or termination of status

would not be considered reasonable. Shorter periods of time

would be considered on a case-by-case basis, with the

decision-maker taking into account the totality of the

circumstances.” Id.

Our presumption as to the reasonableness of a filing delay

of less than six months is based on flawed logic. The

regulation’s statement that a delay of six months or more

“[c]learly” is not reasonable does not mean that the converse

is also true, i.e., that a delay of less than six months

presumptively is—especially when the regulation itself states

that shorter delays should be “considered on a case-by-case

basis, with the decision-maker taking into account the totality

of the circumstances.” 65 Fed. Reg. at 76124. Thus, our

less-than-six-month presumption is a judge-made rule that

has no basis in the text of the INA or the regulations seeking

to implement it. Cf. Ming Dai, 141 S. Ct. at 1677 (“Nothing

in the INA contemplates anything like the embellishment the

Ninth Circuit has adopted.”).

20 ALAM V. GARLAND

*****

These are four examples of rules ingrained in our caselaw

that we have continued to apply, but which, in my view, lack

a statutory basis. There may well be others. Our decision

today affirms that such rules have no place in our

jurisprudence, and that we may only rely on such rules that

sound in the text of the INA or its accompanying regulations.