Petition for Writ of Certiorari — Viracachacha v. Mukasey (No. 07-1363)

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» | Supreme Court U.S.

. no (> 071363 APR 28 2008

Supreme Court of the United States

ARMANDO JIMENEZ VIRACACHA, IRMA YOLANDA JIMENEZ,

ELIANA MARITZA JIMENEZ, ANDRES FELIPE JIMENEZ,

MARIA PAULA JIMENEZ,

Petitioners,

pon are

MICHAEL B. MUKASEY,

UNITED STATES ATTORNEY GENERAL,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

LEE GELERNT CHARLES ROTH

STEVEN R. SHAPIRO Counsel of Record

American Civil Liberties National Immigrant

Union Foundation Justice Center

125. Broad Street, 18th Floor 208 South LaSalle Street

New York, New York 10004 Suite 1818

(212) 549-2500 Chicago, Illinois 60604

(312) 660-1613

Attorneys for Petitioners

(Counsel continued on inside cover)

LUCAS GUTTENTAG Louts S. CHRONOWSKI, JR.

JENNIFER CHANGSHA CHANG STEPHEN J. BROWN

American Civil Liberties Seyfarth Shaw LLP

Union Foundation 131 South Dearborn

39 Drumm Street Suite 2400

San Francisco, California 94111 Chicago, Illinois 60603

(415) 343-0770 (312) 460-5804

Attorneys for Petitioners

QUESTIONS PRESENTED

The Attorney General may consider untimely

asylum applications if the applicant demonstrates to

his satisfaction 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... .”

See 8 U.S.C. 1158(a)(2)(D). The courts of appeals

uniformly agree that review of the Attorney

General’s timeliness determinations is limited to

“constitutional claims’ and “questions of law’

pursuant to 8 U.S.C. 1252(a)(2)(D). But they are

deeply divided over the meaning of the term

“questions of law” — a disagreement that not only

determines whether hundreds of asylum appeals will

be dismissed on jurisdictional grounds each year, but

the federal courts’ jurisdiction over numerous other

immigration issues where jurisdiction is governed by

Section 1252({a)(2)(D). The questions presented are:

1. Whether the Seventh Circuit erred in dismissing

petitioner’s claims regarding the statutory exceptions

for late-filed asylum applications on the ground that

8 U.S.C. 1252(a)(2)(D) does not cover claims

involving the “application of law to fact.”

2. Whether the Constitution guarantees review in

some court by some means over petitioner's claims

regarding the asylum filing exceptions.

PARTIES TO THE PROCEEDING

Petitioners are Armando Jiménez Viracacha;

Irma Yolanda Jiménez; Eliana Maritza Jiménez;

Andres Felipe Jiménez; and Maria Paula Jiménez.

Petitioners were also petitioners in the court of

appeals, but were respondents’ before’ the

Immigration Court and Board of Immigration

Appeals.

Respondent, who was also the respondent in

the court of appeals, is Michael B. Mukasey,

Attorney General of the United States.

TABLE OF CONTENTS

- GEES THONG FR 6a? nn cevcsserecssecsesevssosvseassyroeees i

PARTIES TO THE PROCEEDING ........................008 il

TD Paes OE FT TEIIRE 6 AIG voc sccsiscosecvececcacescesececssscess Vv

PETITION FOR A WRIT OF CERTIORARI............. 1

SI IT ooo viihsn css ensacdatenesusisnLaioueecvasennaseieces 1

i iat a oS ae cn cddeomvenits 1

CONSTITUTIONAL AND STATUTORY

FF IS BOUVET bo svssccu cence ssevivevescoocesnenesseesse 1

irik oa oats nik asinentischiciiosancdiccnaibniiodaaiecnuies 1

A. BORttory BAC RTOUIIG. ..oo.5.ccsessisccnscscovcessseesescrenen 1

B. Petitioner’s Administrative Proceedings...........7

C. The Seventh Circuit’s Detision........................ 10

REASONS FOR GRANTING THE WRIT ............... 12

I. THIS CASE INVOLVES AN ENTRENCHED

CIRCUIT SPLIT ON A JURISDICTIONAL

ISSUE OF BROAD SIGNIFICANCE. ........ 13

A. The Courts Of Appeals Are Divided Over

Their Jurisdiction To Review Determinations

Regarding The Statutory Exceptions To The

One-Year Asylum Filing Deadline.............. 13

B. The Conflicting Positions Taken By the

Courts Of Appeals On The Scope Of Section

1252(a)(2)(D) Have Broad Implications

BIE FIR isis sds vacvcreenvoerruercnn reas 23

Il. THE SEVENTH CIRCUITS JURISDIC-

TIONAL HOLDING IS INCORRECT. ....... 26

a PU ocancnicsshc: cnninarane ve uaa aimtesnon 31

IIE ciskcsd cd to-snarcsnpbetaniesesieusetceeuideunedenebiadiicdummmae la

Decision of the Court of Appeals for

og | eee la

Decision of the Immigration Judge..................0.. lla

Decision of the Board of Immigration

TI nis caisuhnicrcinccnemennidilanibarodnntennaiian 28a

Constitutional, Statutory Regulatory

on | aa ee a Ree 33a

Excerpts from Asylum Training Manual............ 39a

TABLE OF AUTHORITIES

Cases

Almuhtaseb v. Gonzales,

453 F.3d 743 (6th Cir.

Ne ccunsibel 20, 21, 22, 28, 29

Arif v. Mukasey,

Oe ee 7 fF COED Cie, DOIT)... oon .cccrcccsececcyesescccasees 20

Arteaga v. Mukasey,

Ee Bae Pr Oe ie, BOOT) on once cccescesseccssevceseseess 25

Badewa v. Attorney General,

No. 06-2858, 2007 WL 3193841

Ge Se I, I, BNE aicnesviecesecgsanveraversceseaseveseres 25

Calcano-Martinez v. INS,

Re I OE OD soci vavenntsancaseresinss«devnnsscvgacersias 5

Cevilia v. Gonzales,

446 F.3d 658 (7th Cir. 2006),

I I si siyccvecscenvarekensocrvesvecis 11, 24

Chacon-Botero v. Gonzales,

427 F.36 954 (11th Cir. 2005)............................. 19

DeAlmeida v. Attorney General,

No. 05-3453, 2007 WL 2050870

Ce, SUNN BG, BOOT) onan ccesccceecncssesscosesesesesvesese 25

Diallo v. Gonzales,

447 F.3d 1274 (10th Cir. 2006).........0..cccccceeeeeee 21

Enwonwu v. Gonzales,

Po BB Bo FET 2 OS: | re 19

Ferry v. Gonzales,

457 F.3d 1117 (10th Cir. 2006)............... 21, 28, 29

Hamid v. Gonzales,

QUT FB GES CHCB Cae. BOG) nsec cecccstsescccsccecccccesess 25

Hana v. Gonzales,

OS Fee ee COE Cie, BIT) ons s vcicesnscscsncccccesvecscans 20

Hernandez v. Gonzales,

GS Fe CAE TAG. BU) ov scicesvcssvcesinccesscensessnevers 6

I.N.S. v. Cardoza-Fonseca,

re ED oics ca thtcessdmenceriinccniseeeomm 2,8

Ignatova v. Gonzales,

S30 F.3d TAOS CA Civ. DOG) occ ccccesecceccssescssesens 18

INS v. Aguirre-Agutrre,

SIG US 415 (1908) 0c... ...000s.ccccccserees pea 8

INS v. St. Cyr,

se Eee. A Lh | i 4, passim

Jallow v. Gonzales,

472 F.3d 569 (8th Cir. 2007)............... eit nn Le 18

Jean v. Gonzales,

435 F.3d 475 (4th Cir. ZO06)...........0cccc.c0sce00. 17, 24

Jean-Pierre v. Attorney General,

500 F.3d 1315 (11th Cir. 2007).................066. 18, 25

Kamara v. Attorney General,

430 F'.36 2028 (3d Cir. ZOOG) ....cccscscccsscccececesss 18, 27

Liu v. .N.S.,

508 F.3d 716 (2d Cir. 2007) ............. Pre Oe 15

Lorenzo v. Mukasey,

508 F.3d 1278 (10th Cir. 2007)...........ccccesercsesooee 21

Mehilli v. Gonzales,

433 F.3d 86 (let Cir. OOS) ..........cccccsccsesessescessees 20

Nguyen v. Mukasey,

--- F, 3d --- , 2008 WL 1700199 ;

(8th Cir. Apr. 14, 2008) (per curiam) ................. 17

Niang v. Gonzales,

492 F.3d BOG 4th Cit. 2OG7)... cissvcseesccassvevicsncceees 19

Ogbudimkpa v. Ashcroft,

SOR Fe SF Cae Cae. BID vi vvcsecciescscsenccevecsvaviens 26

Pinos-Gonzalez v. Mukasey,

519 F.3d 436 (8th Cir. 2008).........00..s.ccccecese. 18, 24

Pullman-Standard v. Swint,

GB6 TFS, Bre Co idoctinkiuin eee 20

Remadan v. Gonzales,

479 F.3d 646 (per curiam),

reh’g en banc denied, 504 F.3d 973

CORROD SARE, GEN Pcissiinnineencnamebehssaesteeseaans 14, passim

Vil

Romero v. Attorney General,

No. 07-11916, 2007 WL 4105363

SS, BE, GIB ED conccsccvescececccescecevccseccoeses 19

Shkulaku-Purballori v. Mukasey,

BES FSG 450 CEU Cir. 2007)... .cccccccccrscecseccccccssees 20

Sukwanputra v. Gonzales,

EG 18

Taghzout v. Gonzales,

Nos. 05-3667, 05-4335,

2007 WL 738634 (6th Cir.

Nee es ccoccavennstvesssvereseronssssvoure 21

Toussaint v. Attorney General,

Be ek SU (OG CAP. BOUG) 2..0.0ccccescevcccvcccsvess 17, 25

United States ex rel. Accardi v. Shaughnessy,

ES RD ccs conccessspensceserestesscovsesesseceves 21

Wang v. Ashcroft,

Be © ae 1G0 C20 Cir, 2O00D) ........0..ccscccresseccscevecss 26

Xiao Ji Chen v. U.S. Dep't of Justice,

Ee RR) ) 15

Xiao Ji Chen v. U.S. Dep’t of Justice,

471 F.3d 315 (2d Cir. 2006) .................. 15, passim

Zhu v. Gonzales,

re I LEED GET, ZOOT)......cccccssccccsscccrccsesees 19

Vill

Constitutional Provisions

Suspension of Habeas Corpus Clause

of the Constitution, Art. I, § 9, Cl. 2.00.00... ]

Statutes

DEG, PRI vcsicsvncessscssvsecnsecesenoies iaeiiaiontaddaain 12

8 U.S.C. 1101(a)(42)(A) vecccccccccccocececececevecececcececcecseeee 2

LE one | SESE nan eae Here RONG a Pram aR Tn” 8

8 U.S.C. 1158 (a)(2).......... ra taebniaeniedecshciaietaaaatatama ]

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SB U.S.C, LIBBER MA D).0..0..000ccccesesssevvcceravesecsecens sa

BS U.S.C. LEGBIO IMA) «00sec. cc sesscosesccecess nesieguivasummeline 2

8 U.S.C. 1182(a)(9)(B)(v)............ sanieteesk eenimeee 29

Rees. I FD cicrivsecncrecacidtctevcousicnumenian 29

Preis WR askiniintintiidpicnsoctndbinucaminee ee 4

DF a, BI visor cabs cvddiceistorseresesierseccebncene 4

DB UTS. RGR voces iacascscevvsscenseveeseacsannenans 4,5

DS TG. RBBB oaviveccccciccvcccvescoceesvcces cg 1, passim

Se IID occ niestinsdacianmiaeyskaadacivubecounanneondanll 6

UFC, ROBIN onesies ce csevessvessceccsiccionscserececuecooses 6

8 U.S.C. 1253(h)........... eR na eT Me -

Le SA” | ht one a a ee 5

REAL ID Act of 2005, Pub. L. No.

109-13, Div. B, 106(a)(1)(A) (a1),

I yn sda ioluesbeiccxucies sevens 6, passim

Regulations

Nn cinscun cays puedes on bap becndectaconnseaieaunamneaecenl 8

Be ta ci: BE ic niiickseetactdeniacvccreronsvesesntacteereetes 30

a Oy I III Ga snsienccosevcnnssaverecinvhwsiesenrdbeesciiens 30

ee i II sey lnrdnnscs vos chcncuhonaseccsaervenig dee temas 8

Legislative History

H.R. Rep. No. 109-72

GROUD) (COME. ROD.) ..0.00..c00ccccescerereees 6,

pend

<o)

Other Authorities

Asylum Officer Basic Training Course —

One-Year Filing Deadline (Nov. 30,

MIE hd. cups aiansy coeur vecvkonnsdiantis neuen aaa braun nea 30

Gerald L. Neuman, On the Adequacy of

Direct Review After the REAL ID Act

of 2005, 51 N.Y.L. SCH. L. REV. 133

Es eoscpavcsats Deeaer cecil a Coes einni ca adusebeniad ini 28

PETITION FOR A WRIT OF CERTIORARI

Petitioners Armando Jiménez Viracacha, Irma

Yolanda Jiménez, Eliana Maritza Jiménez, Andres

Felipe Jiménez, and Maria Paula Jiménez

respectfully petition for a writ of certiorari to review

the judgment of the United States Court of Appeals

for the Seventh Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App. 1a)!

is reported at 518 F.3d 511. There were no district

court proceedings. The decision and order of the

immigration judge (App. 11a), and the decision of the

Board of Immigration Appeals (App. 28a), are

unreported.

JURISDICTION

The judgment of the court of appeals was

entered on March 3, 2008. The jurisdiction of this

Court is invoked under

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Reprinted in an appendix to this petition (App.

33a) are pertinent portions of the Suspension of

Habeas Corpus Clause of the Constitution, Art. I, §

9, Cl. 2; and 8 U.S.C. 1158(a)(2), 1158(a)(3),

1158(a)(2)(D), 1252(a)(2)(D).

STATEMENT

A. Statutory Background.

1. Congress enacted the Refugee Act of 1980

to bring this country into compliance with its

obligations under the United Nations Convention

1“App.” refers to the appendix attached to this petition.

Relating to the Status of Refugees. See ILN.S. v.

Cardoza-Fonseca, 480 U.S. 421, 424 (1987). To

qualify for asylum, applicants must show that they

cannot return to their home countries because of

persecution or a well-founded fear of persecution on

account of race, religion, nationality, membership in

a particular social group, or political opinion. Jd. at

423; 8 U.S.C. 1158(b)(1)(A); 8 U.S.C. 1101(a)(42)(A).

Where the applicant meets. these _ statutory

prerequisites, the Attorney General has discretion to

grant asylum. Cardoza-Fonseca, 480 U.S. at 423.

In 1996, Congress enacted an asylum filing

deadline. Under the new restriction, applicants may

not apply for asylum unless they can demonstrate by

clear and convincing evidence that they filed their

application within one year after their arrival in the

United States. 8 U.S.C. 1158(a)(2)(b).

In response to significant controversy over the

proposed deadline, Congress also simultaneously

enacted two statutory exceptions in the 1996

legislation. Under these exceptions, untimely

asvlum applications may be considered where the

alien can demonstrate to “the satisfaction of the

Attorney General the existence of either changed

circumstances which materially affect the applicant’s

eligibility for asylum or extraordinary circumstances

relating to the delay in filing an application within

the [one-year] period © specified.” a Use.

1158(a)(2)(D). See also 142 Cong. Rec. $11838,

S11840 (Sept. 30, 1996) (statement of Sen. Hatch)

(explaining the “changed” and “extraordinary”

exceptions were added out of the “concern” that

asylum remain “available for those with legitimate

claims’).

Congress recognized that there would often be

legitimate reasons for an alien’s failure to apply for

asylum within one year of arrival in the United

States and that these exceptions were thus critically

important given the life and death stakes at issue.

See 142 Cong. Rec. S11491 (Sept. 27, 1996)

(statement of Sen. Hatch) (emphasizing that “the two

exceptions” are intended to “provide adequate

protections to those with legitimate claims of

asylum”). Among the various examples cited by

Congress were aliens who legitimately failed to apply

within one year but subsequently obtained “more

information about likely retribution [they] might face

if [they] returned home,” 142 Cong. Rec. $11838,

S11840 (Sept. 30, 1996) (statement of Sen. Hatch), or

who learned their “home government may have

stepped up its persecution of people of [their]

religious faith or political beliefs,” 142 Cong. Rec.

S11491 (Sept. 27, 1996) (statement of Sen. Hatch), or

were delayed because there was a “temporary

unavailability of professional assistance.” 142 Cong.

Rec. S4730, S4748-49 (May 6, 1996).

Congress made clear that these exceptions

were to be given a liberal interpretation to ensure

that no alien with a genuine claim for asylum would

be turned away for failing to apply within the one-

vear deadline. 142 Cong. Rec. S11838, S11839-40

(statement of Sen. Hatch) (stating that the

“important exceptions’ are meant to “ensur[e] that

those with legitimate claims of asylum are _ not

returned to persecution, particularly for technical

deficiencies”). See also id. (statement of Sen.

Abraham) (explaining that the changed

circumstances provision covers “a broad range of

circumstances,” and emphasizing the need for close

congressional “attention to how the provision is

interpreted” to ensure that the exceptions “provide

sufficient protection to aliens with bona fide claims of

asylum”).

2. Under the general judicial review

procedures of the INA, 8 U.S.C. 1252 et seq., asylum

applicants may file a “petition for review” in the

court of appeals. Judicial review of the one-year

deadline or statutory exceptions for late-filed

applications is barred under Section 1158(a)(3),

except insofar as the applicant is_ raising

“constitutional claims’ or “questions of law” pursuant

to Section 1252(a)(2)(D). That limitation on review

arises from the interaction of two sets of

jurisdictional amendments to the INA (in 1996 and

2005), and this Court’s intervening decision in INS uv.

St. Cyr, 533 U.S. 289 (2001), which interpreted the

1996 amendments and triggered the passage of the

2005 amendments.

a. In 1996, as part of the comprehensive

Illegal Immigration Reform and _ Immigrant

Responsibility Act (“IIRIRA”), Congress passed a

series of jurisdictional provisions that now permeate

the INA. These provisions include limitations on

review for aliens with certain types of criminal

convictions (8 U.S.C. 1252(a)(2)(C)), for aliens raising

certain types of discretionary claims (8 U.S.C.

1252(a)(2)(B)), and numerous other restrictions.

Of particular relevance here, as part of these

1996 amendments Congress also enacted a specific

provision governing asylum filings, which bars

“review where asylum applicants challenge the

determination that they failed to file within the one-

year deadline or failed to satisfy one of the statutory

exceptions for late-filed applications. 8 U.S.C.

1158(a)(3).

In 2001, in St. Cyr, this Court addressed the

1996 jurisdictional amendments, and specifically the

provision barring review for aliens removable on the

basis of certain crimes (8 U.S.C. .1252(aj(2)(C)). The

Court reached four principal conclusions relevant

here.

First, the Court concluded that the 1996

jurisdictional restrictions generally barred direct

review in the court of appeals by petition for review

of claims regarding eligibility for discretionary relief.

St. Cyr, 533 U.S. at 311-12; see also Calcano-

Martinez v. INS, 533 U.S. 348 (2001) (companion

case to St. Cyr). Second, the Court concluded that

the preclusion of all review by any means over

petitioners claim would trigger “substantial

constitutional questions” under the Suspension

Clause. Id. at 300. Third, the Court held that the

1996 provision did not bar the alien’s right to district

court habeas corpus review under 28 U.S.C. 2241,

relying heavily on the cannon of constitutional

avoidance and the longstanding rule that habeas

review may unly be repealed by an explicit directive

in the statute’s text. Id. at 299, 312-13. Finally, the

Court made clear that the Suspension Clause

protected the substance of review, and not the form

of review. Congress was thus permitted to provide a

substitute for habeas corpus under 28 U.S.C. 2241

provided that it is “neither inadequate nor

ineffective.” Jd. at 314, n.38. In particular, the

Court stated that Congress could place review back

into the court of appeals by petition for review as

long as the petition for review procedure afforded a

level of review commensurate with that afforded in

habeas. See id; see also id. at 305.

b. In 2005, Congress took up the Court’s

invitation in St. Cyr and enacted the REAL ID Act.

REAL ID Act of 2005, Pub. L. No. 109-13, Div. B,

106(a)(1)(A)(a1), 119 Stat. 310. As noted in the Joint

House-Senate Conference Report, the REAL ID Act

had twin goals. The first was to eliminate habeas

review over challenges to removal orders and

channel such review back to the courts of appeals by

petition for review. Doing so, in Congress’ view,

would eliminate the delays inherent in providing a

double layer of review (habeas review followed by an

appeal to the circuits). Congress also believed that

placing all review of removal orders back into the

courts of appeals would eliminate the perceived

anomaly created by the 1996 amendments, in which

certain aliens sought review directly in the courts of

appeals, while other aliens — those subject to a

jurisdictional bar in the courts of appeals — obtained

review by commencing actions in district court.

Accordingly, Congress enacted several provisions

that expressly eliminated habeas review over

removal orders. See, e.g., 8 U.S.C. 1252(2)(5);

1252(b)(9).2

The second goal of the Real ID Act was to

ensure that the scope of review of removal orders

—_————_—.

2 Although the REAL ID Act generally repealed habeas review

over challenges to final removal orders, it made clear that it did

not eliminate habeas review over all immigration decisions,

such as detention challenges. See, e.g., Hernandez v. Gonzales,

424 F.3d 42, 42 (1st Cir. 2005). See also H.R. Rep. No. 109-72,

at 175 (2005) (Conf. Rep.) (noting that the Act “would not

preclude habeas review over challenges to detention that are

independent of challenges to remove! orders’).

provided in the courts of appeals reached those

claims traditionally reviewable in habeas, thus

ensuring an adequate substitute for habeas. Indeed,

the Conference Report expressly cites the Court’s St.

Cyr decision and acknowledges on several occasions

Congress’ understanding that it cannot eliminate

habeas review without providing a commensurate

substitute. H.R. Rep. No. 109-72, 175 (2005) (Conf.

Rep.).

To accomplish this second goal, Congress

chose not to try and amend each of the individual

1996 jurisdiction-stripping provisions. Rather,

Congress enacted a generally-applicable

jurisdictional trump card — 8 U.S.C. 1252(a)(2)(D).

As previously noted, Section 1252(a)(2)(D) provides

the courts of appeals with jurisdiction over

“constitutional claims” and “questions of law” and

does so notwithstanding the existing jurisdictional

bars in the INA (with exceptions not relevant here).

Thus, in light of Section 1252(a)(2)(D), there is

now no dispute that the courts of appeals may review

claims by petition for review that previously would

have been barred under the 1996 jurisdiction-

stripping provisions — including claims that an

asylum applicant satisfied one of the statutory

exceptions for late-filed applications. Rather, the

dispute concerns the scope of review, and in

particular, the types of claims that fall within the

meaning of “questions of law” in_ Section

1252(a)(2)(D).

B. Petitioner’s Administrative Proceedings.

1. The lead petitioner in this case, Armando

Jiménez Viracacha, is a native of Colombia who came

to the United States in 1998, on a six-month tourist

visa. His wife and three children, also natives of

Colombia, arrived in this country two years later, in

2000.3

In 2002, petitioner affirmatively applied for

asylum before an asylum officer. 8 U.S.C. 1158; 8

C.F.R. 1208.3, 1208.9. The application was denied

based on untimeliness and _ petitioner was

subsequently placed in_ removal proceedings,

charged with being out of status. He conceded

removability on the basis of his expired visa and

applied for withholding of removal under 8 U.S.C.

1253(h) and also renewed his asylum application

under 8 U.S.C. 1158.

Like asylum, withholding requires aliens to

show that they will be persecuted on one of the

specified grounds, but applicants must meet a higher

burden of proof and establish that “it is more likely

than not” that they will be subject to persecution.

See INS v. Aguirre-Aguirre, 526 US 415, 419 (1999);

8 U.S.C. 1253(h). If the applicant meets this higher

burden, the Attorney General must withhold

deportation. Cardoza-Fonseca, 480 U.S, at 423; 8

U.S.C. 1253(h)(1). And, importantly, withholding

has no filing deadline.

2. The immigration judge granted petitioner

withholding of removal, finding that he would be

persecuted on account of his political association.

Specifically, the immigration judge noted that

petitioner “was shot at by members of the FARC’

i —_-+ —- — — om

3 Although Mr. Jiménez’s wife and children are parties to the

proceedings in this Court, and were parties in the Court of

Appeals, he was the lead petitioner. For simplicity, this

petition refers to only one petitioner, Mr. Jiménez.

[Revolutionary Armed Forces of Colombia] and

“received numerous threats from FARC members...

because of his political activism.” App. 22a. The IJ

concluded that if petitioner “returned and continued

to campaign against the FARC,” his activism “would

likely engender the same response of threats,” and

there existed a “realistic likelihood that he will be

mistreated because of his political opinion.” Jd.

Given that petitioner satisfied the higher

burden imposed on withholding applicants, he

necessarily would have qualified for asylum had he

been permitted to apply. The immigration judge,

however, concluded that he was statutorily ineligible

for asylum, finding that he had not filed his

application within one year of his arrival in the

United States and that he had not demonstrated

sufficiently “changed” or “extraordinary”

circumstances to justify the late filing. App. 20a.

Petitioner's principal contention was that he

satisfied the changed circumstances exception

because conditions had dramatically and materially

changed in Colombia given the breakdown of the

peace process between the FARC and the Colombian

government. The immigration judge did not dispute

that there had been “many significant developments

in Colombia” between petitioner's arrival in the

United States and 2002, when he filed his

application. App. 19a. The immigration judge

concluded, however, that the relevant question under

the statute was whether those developments

“changed the circumstances in such a way as to

cause a new Situation to exist, one that hadn't

existed during the period in which respondent was

obligated to file... .” Jd. As to that question, the

immigration judge found that although the civil war

in Colombia had “intensified” over the years, the

“nature of the conflict” was “essentially” the same

because it was still a conflict between the FARC and

the Colombian government. App. 19a-20a.

Consequently, the immigration judge concluded that

petitioner did not’ satisfy the “changed”

circumstances exception.

The immigration judge _ also _ rejected

petitioner's claim that he satisfied the “extraordinary

circumstances” exception. App. 18a-19a.4

3. The Board of Immigration appeals (“BIA”

or “Board”) affirmed the asylum ruling on the basis

of the immigration judge’s decision, finding that

petitioner had not satisfied either of the statutory

exceptions for missing the deadline. App. 29a (“we

adopt and affirm the decision of the Immigration

Judge”). The government did not appeal the grant of

withholding.

C. The Seventh Circuit’s Decision.

The court of appeals dismissed the petition for

review for lack of jurisdiction. Accordingly, it did not

reach the merits of whether petitioner had satisfied

one of the statutory exceptions for late-filed asylum

applications. App. 6a, 10a.5

4 As the court of appeals explained, asylum affords significant

benefits that are not available to aliens who are granted

withholding, including freedom of travel, legal permanent

residence, and eventual citizenship. App. 5a. Thus, the grant

of withholding did not afford petitioner and his family full

relief.

5 Before turning to the central jurisdictional question in the

case, the court of appeals concluded that it was not deprived of

jurisdiction simply because the Board had remanded the case to

the IJ for a background check regarding the withholding grant.

The Seventh Circuit began by noting that 8

U.S.C. 1158(a)(3), enacted in 1996, prohibited review

of the filing exceptions, but acknowledged that the

REAL ID Act had now restored its jurisdiction over

these determinations to review “constitutional

claims” or “questions of law.” App. 6a (citing 8

U.S.C. 1252(a)(2)(D)). The court nonetheless

concluded that petitioner’s claims were unreviewable

under Section 1252(a)(2)(D).

The court of appeals recognized that petitioner

was not seeking judicial review of historical,

descriptive facts, such as when particular events

occurred in Colombia. Rather, the court noted that

petitioner was challenging the Board’s determination

that he failed to satisfy the statutory exceptions and

was thus raising a claim involving the “application of

law to fact.” App. 6a. The court nonetheless

concluded that it lacked jurisdiction, citing the

Seventh Circuit’s prior decision in Cevilla ov.

Gonzales, 446 F.3d 658 (7th Cir. 2006), reh’g en banc

denied, which held in another context that Section

1252(a)(2)(D)’s_ reference to “questions of law”

encompassed only “pure” legal issues.

Elaborating on Cevilla, the court of appeals

stated that Section 1252(a)(2)(D)’s reference to

“questions of law” encompassed only those

“situations in which a case comes out one way if the

Constitution or statute means one thing, and the

other way if it means something different.” App. 7a.

Thus, because the court found that the Board had

correctly “stated” the legal standards governing the

statutory exceptions for late filings, it held that its

App. 3a-5a; see also App. 3a (noting that background checks

were successfully completed before the Seventh Circuit's

decision on asylum)

jurisdiction was at an end and that it could not

review whether the Board failed to correctly apply

the legal standards to the facts of the case. App. 6a.

The court also concluded that the complete

preclusion of review over petitioner's claims raised

no constitutional concerns, relying on the fact that no

court has ever questioned the constitutionality of

Section 701(a)(2) of the Administrative Procedure

Act, which bars review of decisions “committed to

agency discretion by law.” 5 U.S.C. 701(a)(2). The

opinion did not mention this Court's St. Cyr decision,

the Suspension Clause, or the significant body of

immigration habeas law relied upon by the Court in

St. Cyr.

The Seventh Circuit recognized that its

holding was in direct conflict with the Ninth Circuit’s

position, see App. 7a-8a, but found the Ninth

Circuit’s reasoning unpersuasive. App. 9a (stating

that the Ninth Circuit’s decision “does not persuade

us”). The court also stated that although the Second

Circuit had taken a position similar to the Ninth

Circuit's, that court had now retreated from its

earlier view. App. 7a. As discussed below, however,

the Seventh Circuit's characterization of the Second

Circuit’s position is incorrect, as was its statement

that at least seven other circuits “read

§ 1252(a)(2)(D) as limited to pure questions of law.”

App. Qa.

REASONS FOR GRANTING THE WRIT

The jurisdictional issue presented by this case

is of great practical importance for the adjudication

of asylum claims and for the jurisdiction of the

federal courts with regard to review of immigration

decisions. Eleven circuits have addressed the issue

and are divided. That division is mature and

entrenched, and will not benefit from further

litigation in the circuits. Moreover, the jurisdictional

provision at issue here ~ 8 U.S.C. 1252(a)(2)(D) — is

one of general applicability and affects numerous

immigration issues beyond asylum. Because the

courts of appeals have taken widely divergent

analytical approaches in assessing the scope of

Section 1252(a)(2)(D), the number of issues affected,

and the level of confusion, will likely only increase.

Finally, the Seventh Circuit's decision is wrong and

cannot be squared with Section 1252(a)(2)(D)’s text

and legislative history or this Court’s Suspension

Clause analysis in St. Cyr.

I, THIS CASE INVOLVES AN

ENTRENCHED CIRCUIT SPLIT ON A

JURISDICTIONAL ISSUE OF BROAD

SIGNIFICANCE,

A, The Courts Of Appeals Are Divided

Over Their Jurisdiction To Review

Determinations Regarding The

Statutory Exceptions To The One-

Year Asylum Filing Deadline.

Every circuit (other than the D.C. Circuit) has

addressed the extent to which the courts of appeals

have jurisdiction to review claims regarding the

statutory exceptions to the one-year filing deadline.

They are divided, both in result and analysis. The

Ninth Circuit has held that it may review whether

applicants have satisfied the statutory filing

exceptions. The Second Circuit has taken a less

‘categorical but similar position to the Ninth

‘Circuit's. The other nine circuits to address the issue

(including the Seventh Circuit) have disagreed about

the meaning of Section 1252(a)(2)(D) in significant

respects and have restricted review of the one-year

deadline to a narrow subset of legal claims based on

divergent and conflicting grounds.

1. Ninth and Second Circuits. The Ninth

Circuit, in Ramadan v. Gonzales, 479 F.3d 646 (per

curiam), reh’g en banc denied, 504 F.3d 973 (9th Cir.

2007), has squarely held that the term “questions of

law” in Section 1252(a)(2)(D) encompasses claims

involving the “application of law to fact” and is not

limited to pure questions of law. Accordingly, in the

Ninth Circuit, asylum applicants may challenge

whether, on the facts of their case, they satisfied the

statutory exceptions for late-filed applications — 1.e.,

whether the “changed” or “extraordinary”

circumstances exceptions were correctly applied to

their case. 479 F.3d at 648.

In reaching that conclusion, the Ninth Circuit

emphasized that Section 1252(a)(2)(D) did not permit

it to review pure historical, descriptive facts. But, as

Ramadan explained, claims involving the application

of law to fact do not require a reviewing court to

disturb the historical facts found by the immigration

judge or Board. Ramadan, 479 F.3d at 657. The

Ninth Circuit also acknowledged that Section

1252(a)(2)(D) did not permit it to review pure

discretionary claims, but rejected the government’s

6 In Ramadan the Ninth Circuit originally dismissed the

petitioner's claims for lack of jurisdiction on the ground that

Section 1252(a)(2)(D) was limited to constitutional claims and

questions of statutory construction. See Ramadan v. Gonzales,

427 F.3d 1218 (9th Cir. 2006). On rehearing, and after fuller

briefing and argument, the court revised its decision, adopting

its current position. Ramadan v. Gonzales, 479 F.3d 646 (per

curiam) (revising prior decision), reh’g en banc denied, 504 F.3d

973 (9th Cir. 2007).

contention that the statutory standards governing

late-filed asylum applications were discretionary. Id.

at 654-56.

The Second Circuit has likewise squarely

rejected the position that Section 1252(a)(2)(D) is

limited to reviewing “pure” errors of law and has

held that it may review claims involving the

“application of law to fact.” Xiao Ji Chen v. U.S.

Dep’t of Justice, 471 F.3d 315, 324-30 (2d Cir. 2006).7

The Second Circuit has also acknowledged that it

may not review pure factual findings or discretionary

claims. Jd. But, unlike the Ninth Circuit, the

Second Circuit in Chen did not attempt to define the

precise line between reviewable and unreviewable

claims, and instead held that a reviewing court

should carefully examine the particular type of claim

raised in each case to determine whether the asylum

applicant was raising a question of law within the

meaning of Section 1252{a)(2)(D). Chen, 471 F.3d at

330. In adopting that case-by-case approach, the

Second Circuit left no doubt, however, that it was not

confining review under Section 1252(a)(2)(D) solely

to those instances where the Board misstated the

governing legal standard.®

7 Like the Ninth Circuit, the Second Circuit in Chen initially

concluded that Section 1252(a)(2)(D) was limited to pure claims

of statutory construction, Xiao Ji Chen v. U.S. Deptt of Justice,

434 F.3d 144 (2d Cir. 2006), but on rehearing adopted its

current position. See Xiao Ji Chen v. U.S. Dep’ of Justice, 471

F.3d 315, 324-30 (2d Cir. 2006) (revising prior decision).

8 The court of appeals in this case incorrectly stated that the

‘Second Circuit recently retreated from Chen in Liu v. L.N.S.,

508 F.3d 716 (2d Cir. 2007). But Liu specifically applied the

analytical framework in Chen. Id. at 720-21. More

fundamentally, the applicant in Liu did not contend that the

2. The Seventh Circuit. In direct contrast

to the Ninth and Second Circuits, the Seventh

Circuit has taken the position that Section

1252(a)(2)(D) apphes only to “pure” questions of law

and, on that basis, dismissed petitioner’s claims,

which it characterized as involving only the

“application of law to fact.” App. 6a. In particular,

the Seventh Circuit stressed that, in its view, the

Board and immigration judge had both “stated with

precision the rules for exceptions to the one-year

deadline,” and that petitioner was thus arguing only

that he satisfied the filing exceptions on the facts of

his case. Jd. Accordingly, the court held that there

was no “legal mistake” for it to review within the

meaning of Section 1252(a)(2)(D) and _ that

petitioner’s jurisdictional position “boils down to the

contention that every error an agency can make is in

the end one of law.” App. 6a (internal quotation

marks omitted).

3. The Other Eight Circuits. The other

eight circuits that have addressed whether the filing

exceptions are reviewable have also. substantially

limited review, but have done so on the basis of a

varicty of analytical approaches. The cases fall into

three basic categories.

The first category consists of those courts that

have concluded that Section 1252(a)(2)(D) does

authorize review of the application of law to fact, but

have nonetheless held that their jurisdiction to

review the filing exceptions is limited. Some of these

circults have reasoned that the filing exceptions are

discretionary, and thus unreviewable for that reason.

statutory exceptions had been improperly applied to him, but

argued only that he filed within the one-year deadline, a pure

factual claim. Id. at 721.

The other circuits in this category have not provided

a specific reason for concluding that the filing

exceptions are largely unreviewable.

The second category consists of those courts

that have not taken a position generally on the scope

of Section 1252(a)(2)(D). These circuits, however,

have concluded that the application of the asylum

filing exceptions raises predominately unreviewable

factual issues.

The third category consists of the two circuits

that have agreed with the Seventh Circuit that

Section 1252(a)(2)(D) is limited to “pure” questions of

law. These two circuits have also concluded that the

application of the filing exceptions to particular cases

raises unreviewable discretionary and/or factual

claims.

(a) The first category consists of the Third,

Fourth, Eighth and Eleventh Circuits. All four

circuits have concluded that Section 1252(a)(2)(D) is

not limited to pure questions of law. Like the Second

and Ninth Circuits, these courts have specifically

held that Section 1252(a)(2)(D) encompasses claims

involving the application of law to fact. See

Toussaint v. Attorney General, 455 F.3d 409, 412 n.3

(3d Cir. 2006) (concluding, that “we have jurisdiction

to review the BIA’s application of law to the facts of

this case”); Jean vu. Gonzales, 435 F.3d 475, 482 (4th

Cir. 2006) (concluding that a “determination

involving the application of Jaw to factual findings ...

presents a reviewable decision” under the REAL ID

Act); Nguyen v. Mukasey, --- F.3d --- , 2008 WL

1700199, at *1 (8th Cir. Apr. 14, 2008) (per curiam)

(concluding that “whether the IJ properly applied the

law to the facts” is a reviewable “legal question’);

Jean-Pierre v. Attorney General, 500 F.3d 1315, 1322

(11th Cir. 2007) (concluding that it could review “the

application of an undisputed fact pattern to a legal

standard”).9

The Third and Eighth Circuits’ have

nonetheless concluded that asylum applicants may

generally not challenge whether they satisfied the

filing deadline exceptions because those exceptions

are “discretionary” in nature. See Sukwanputra uv.

Gonzales, 434 F.3d 627, 635 (3d Cir. 2006)

(concluding that the Attorney General's

determination “entails an exercise of discretion” and

is thus unreviewable); [gnatova v. Gonzales, 430 F.3d

1209, 1214 (8th Cir. 2005) (concluding that “the

decision whether such [extraordinary] circumstances

exist is a discretionary judgment”); Jallow uv.

Gonzales, 472 F.3d 569, 571 (8th Cir. 2007)

(concluding that changed or _ extraordinary

circumstances exception 1s “committed to the

discretion of the Attorney General” and thus

unreviewable).

The Fourth and Eleventh Circuits have also

concluded that review of the filing exceptions is

generally precluded, but, unlike the Third and

Eighth Circuits, have not provided a specific basis for

that conclusion. In particular, they have not stated

whether they believe that the application of the filing

exceptions to the facts of a given case is a

predominately factual or discretionary issue. See,

9 See also, eg., Kamara v Attorney General, 420 F.3d 202, 211

(3d Cir. 2005) (holding that Section 1252(a)(2)(D) encompasses

“issues of «pplication of law to fact’); Pinos-Gonzalez uv.

Mukasey, 519 F.3d 436, 439 (8th Cir. 2008) (characterizing as a

“legal question whether the IJ properly applied the law to the

facts’) (internal quotation marks and citetion omitted).

e.g., Niang v. Gonzales, 492 F.3d 505, 510 n.5 (4th

Cir. 2007) (finding, without explanation, no review of

asylum filing exceptions); Chacon-Botero vu. Gonzales,

427 F.3d 954, 956-57 (11th Cir. 2005) (concluding,

without explanation, that the “timeliness of an

asylum application is not a constitutional claim or

question of law covered by the Real ID Act’s

changes”); Romero v. Attorney General, No. 07-11916,

2007 WL 4105363, at **2 (11th Cir. Nov. 20, 2007)

(conclusorily rejecting contention that the Court may

review claims where the applicant is_ not

“questioning the BIA’s findings of fact” but rather

“challenging the legal conclusion that those facts do

not constitute changed or extraordinary

circumstances’).

(b) The First and Fifth Circuits fall into the

second category. Neither circuit has ruled

specifically on the scope of Section 1252(a)(2)(D), and

in particular, whether they believe the term

“questions of law” encompasses the application of law

to fact. See, eg., Enwonwu v. Gonzales, 438 F.3d 22,

33 (1st Cir. 2006) (noting that its precedent has left

open the question whethe: the “application of legal

principles to undisputed facts” constitutes a question

of law).

These circuits have concluded, however, that

the asylum filing exceptions are generally

unreviewable, reasoning that claims involving the

application of the filing exceptions to a particular

applicants case will generally raise only

unreviewable factual claims. Zhu vu. Gonzales, 493

F.3d 588, 596 & n.31 (5th Cir. 2007) (expressly

disagreeing with the Ninth Circuit’s conclusion in

Ramadan that it may review “mixed” questions of

law and fact, holding that it lacks “jurisdiction to

review timeliness determinations that are based on

an assessment of the facts and circumstances of a

particular case”); Arif v. Mukasey, 509 F.3d 677, 680

(5th Cir. 2007); Mehtili vu. Gonzales, 433 F.3d 86, 93

(Ist Cir. 2005) (“BIA findings as to timeliness and

changed circumstances are usually factual

determinations’); Hana v. Gonzales, 503 F.3d 39, 42-

43 (1st Cir. 2007) (concluding that alien’s claim that

his depression and nervous breakdown amounted to

“extraordinary circumstances” excusing his late

filing did not constitute a question of law and was

therefore unreviewable).

The First and Fifth Circuits thus appear to

take the position that, for purposes of Section

1252(a)(2)(D), there is no significant difference

between a case in which the applicant challenges a

pure descriptive factual finding and a case where the

applicant contends that, on the facts of his case, he

satisfied one of the statutory exceptions to the filing

deadline (as petitioner claims here). Compare

Ramadan, 479 F.3d at 648 (defining the application

of law to facts as those situations “in which the

historical facts are admitted or established, the rule

of law is undisputed, and the issue is whether the

facts satisfy the statutory standard”) (quoting

Pullman-Standard v. Swint, 456 U.S. 273, 289 n.19

(1982)).

agreed with the Seventh Circuit that Section

1252(a)(2)(D) is limited to constitutional claims and

“pure” questions of law. See Almuhtaseb v. Gonzales,

453 F.3d 743, 748 (6th Cir. 2006) (limiting review

under Section 1252(a)(2)(D) to “constitutional claims

or matters of statutory construction”); Shkulaku-

Purballori v. Mukasey, 514 F.3d 499 (6th Cir. 2007)

(same); Diallo v. Gonzales, 447 F.3d 1274, 1282 (10th

Cir. 2006) (“in addition to constitutional claims, the

REAL ID Act grants us jurisdiction to review a

‘narrow category cf issues regarding statutory

construction”) (citation omitted); Lorenzo ov.

Mukasey, 508 F.3d 1278, 1282 (10th Cir. 2007)

(same).!0

The Sixth and Tenth Circuits have further

held that the asylum filing exceptions are

discretionary and thus unreviewable for that reason

as well. See Taghzout v. Gonzales, Nos. 05-3667, 05-

4335, 2007 WL 738634, at **5 (6th Cir. Mar. 12,

2007) (concluding that whether a petitioner's facts

amounted to extraordinary circumstances is a

“discretionary ruling”); Ferry v. Gonzales, 457 F.3d

1117, 1130 (10th Cir. 2006) (argument that

applicant's circumstances “qualified as either a

10 These circuits have cited the Conference Report’s statement

that the “purpose of [Section 1252(a)(2)(D)] . . . is to permit

judicial review over those issues that were historically

reviewable on habeas — constitutional and _=statutory-

construction questions, not discreticnary or factual questions.”

H.R. Rep. No. 109-72, 175 (2005). See, e.g., Almuhtaseb, 453

F.3d at 747-48 (discussing Conference Report); Diallo, 447 F.2d

at 1282 (same). But that passage is not an exhaustive

recitation of ali legal claims that were reviewable in habeas.

The Report is simply distinguishing legal claims from “factual”

and “discretionary” claims. If the passage were read to be

exhaustive, then the REAL ID Act would preclude review over

pure questions of law regarding the proper interpretation of

regulations. That would directly contradict this Court’s

precedent and render the statute unconstitutional. See St. Cyr,

533 U.S. at 307 (citing United States ex rel. Accardi uv.

‘Shaughnessy, 347 U.S. 260 (1954), for the proposition that

habeas review encompasses claim involving proper application

of regulations). See Ramadan, 479 F.3d at 653-54; Chen, 471

‘F.3d at 327-30.

changed or extraordinary circumstance... is a

challenge to an exercise of discretion that remains

outside our scope of review”). In addition, the Sixth

Circuit has also suggested that the application of the

filing exceptions to a given case raises unreviewable

factual-issues. See Almuhtaseb, 453 F.3d at 748.

4. The divergent views of the courts of appeals

cannot be reconciled and there is little likelihood that

the disagreements will resolve themselves through

further lower court litigation. Each circuit has

issued multiple jurisdictional decisions on this issue

over the span of a three year period. Nor can there

be any question about the importance of the issue

given the stakes for asylum applicants and the

hundreds of cases in which the issue arises each

year !!

In short, the jurisdictional split over review of

the one-year filing deadline exceptions for asylum

applications is independently sufficient to warrant

this Court’s review. But, as discussed below, the

disagreement over the scope of Section 1252(a)(2)(D)

is not limited to the asylum context.

11 The importance of the issue is not lessened by the fact that

withholding has no application deadline. As discussed above,

supra note 4, and as the court of appeals recognized in this

case, App. 5a, the differences between asylum and withholding

are significant. Moreover, because withholding has a much

higher burden, some aliens would qualify for asylum if

permitted to apply but are not able to satisfy the more rigorous

withholding standard. The fact that petitioner in this case was

able to satisfy the withholding standard means that he would

satisfy the asylum standard if allowed to apply.

B. The Conflicting Positions Taken By

the Courts Of Appeals On The

Scope Of Section 1252(a)(2)(D) Have

Broad Implications Beyond Asylum.

Since the enactment of the REAL ID Act, a

computerized Westlaw search indicates that the

courts of appeals have issued approximately 900

decisions citing to 8 U.S.C. 1252(a)(2)(D). Of these,

more than 400 have involved issues other than

asylum.

The fact that Section 1252(a)(2)(D) is cited so

frequently and broadly is not surprising. Congress

enacted dozens of jurisdiction-stripping provisions 1n

1996. With exceptions immaterial here, each one of

these jurisdictional provisions has now been trumped

by Section 1252(a)(2)(D). Thus, every time a court of

appeals encounters one of the 1996 jurisdiction-

stripping provisions, it must determine whether its

review has been restored by Section 1252(a)(2)(D),

which in turn requires the court to determine the

scope of Section 1252(a)(2)(D). Predictably,

therefore, the courts of appeals have reached

conflicting jurisdictional results in areas outside the

asylum context.

For example, an alien’s statutory eligibility for

a “waiver” of removal generates __ significant

immigration litigation, especially given’ the

frequency with which Congress amends the waiver

provisions. See, e.g., St. Cyr, 5383 U.S. at 314-26

(resolving dispute over retroactive application of the

1996 amendments to the Section 212(c) waiver, now

called “cancellation of removal’). Given the fact that

the courts of appeals have taken divergent positions

on the scope of Section 1252(a)(2)(D), this waiver

litigation has now generated jurisdictional conflicts.

The Seventh Circuit, for example, has held

that it has limited review over claims relating to

certain waivers in light of its position that Section

1252(a)(2)(D) encompasses only “pure” questions of

law. Thus, in a case involving the legal eligibility

standards for a cancellation of removal waiver, the

Seventh Circuit found that Section 1252(a)(2)(D) did

not encompass review “of the application of the

‘continuous physical presence’ standard to the facts

of the case.” Cevilla v. Gonzales, 446 F.3d 658, 661

(7th Cir. 2006) (emphasis in original), reh’g en banc

denied.

The Fourth Circuit has taken the opposite

position. In Jean, 435 F.3d at 482, for instance, the

Fourth Circuit held that it could review whether the

alien in that case had satisfied the statutory

eligibility criteria for cancellation of removal, stating

that a “determination involving the application of

law to factual findings . . . presents a reviewable

decision” under the REAL ID Act. Cf. Pinos-

Gonzalez v. Mukasey, 519 F.3d 436, 439 (8th Cir.

2008) (finding jurisdiction to “review the

nondiscretionary determinations underlying a denial

of an application for cancellation of removal, such as

the predicate legal question whether the IJ properly

applied the law to the facts in determining an

individual's eligibility.”) (interna) quotation marks

and citation omitted).

Convention Against Torture (“CAT”) claims

provide a further example of issues impacted by the

disagreement over the scope of Section 1252(a)(2)(D).

The Seventh Circuit, for instance, has held that

whether a petitioner’s evidence of torture satisfies

the CAT “more likely than not” legal standard “does

not depend upon any constitutional issue or question

of law.” Hamid v. Gonzales, 417 F.3d 642, 647 (7th

Cir. 2005).

In contrast, the Third and Ninth Circuits —

both of which have held that questions involving the

application of law to fact constitute “questions of

law” under Section 1252(a)(2)(D) — have exercised

review over the application of the CAT “more likely

than not” standard to undisputed facts. See, e.g.,

Arteaga v. Mukasey, 511 F.3d 940, 948-49 (9th Cir.

2007) (“Weighing the evidence, the IJ and the BIA

agreed that Arteaga did not meet his burden of

showing that more likely than not he would be

tortured at the hands of the El Salvadoran

government if removed. The evidence in the record

does not compel a contrary result.”); Toussaint v.

Attorney General, 455 F.3d 409 (3d Cir. 2006)

(concluding, in withholding of removal and CAT case,

that “we have jurisdiction to review the BIA’s

application of law to the facts of this case”);

DeAlmeida v. Attorney General, No. 05-3453, 2007

WL 2050870, at **2, (8d Cir. June 18, 2007)

(reviewing and affirming the BIA’s conclusion that

“undisputed facts in the record did not satisfy the

standard for CAT relief,’ because petitioner had

failed to establish a likelihood that he would be

imprisoned or tortured); Badewa v. Attorney General,

No. 06-2858, 2007 WL 3193841 (3d Cir. Oct. 30,

2007), at **4 (reviewing whether the BIA erred in

finding that alien “failed to demonstrate that it is

more likely ian not that the Nigerian government

will detain and torture him if he returns”). See also,

2.8. Jean-Pierre v. Attorney General, 500 F.3d 1315,

1322 (llth Cir. 2007) (concluding that the court had

jurisdiction under Section 1252(a)(2)(D) to review

noncitizen’s CAT claim “in so far as he challenges the

application of an undisputed fact pattern to a legal

standard’).!2

Thus, the jurisdictional disagreement in the

courts of appeals over the scope of Section

1252(a)(2)(D) has broad significance that goes well

beyond the asylum context. And, as in the asylum

context, the disagreement in these other areas is

unlikely to resolve itself. This Court's review is

warranted to resolve the disagreement.

Il. THE SEVENTH CIRCUIT'S JURISDIC-

TIONAL HOLDING IS INCORRECT.

The court of appeals’ view that Section

1252(a)(2)(D) encompasses only “pure” questions of

law is incorrect as a matter of statutory

interpretation and constitutional mandate. In

particular, the court of appeals erred in finding that

it could not review whether the asylum filing

exceptions were properly applied to petitioner's case.

1. The REAL ID Act was not intended to

eliminate any review previously available in habeas.

The Conference Report specifically states that the

“purpose of [new Section 1252(a)(2)(D)] is to permit

judicial review over those issues that were

historically reviewable on habeas.” H.R. Rep. No.

109-72, 175 (2005). Indeed, the Report expressly

12 These cases are consistent with pre-REAL ID Act decisions

holding that habeas review encompassed claims involving the

application of the CAT “more likely than not” standard to the

facts of a given case. See, e.g., Wang v. Ashcroft, 320 F.3d 130,

142-43 (2d Cir. 2003); Ogbudimkpa v. Ashcroft, 342 F.3d 207,

222 (3d Cir. 2003).

contrasts the REAL ID Act provisions with the 1996

jurisdiction-stripping amendments and emphasizes

that the Act was not intended to “eliminate judicial

review, but simply restores such review to its former

settled forum prior to 1996.” Id. See Chen, 471 F.3d

at 326-27 (“We construe ... the REAL ID Act... to

encompass the same types of issues that courts

traditionally exercised in habeas review”); Ramadan,

479 F.3d at 653-54 (same); Kamara vu. Atiorney

General, 420 F.3d 202, 211, 213-15 (8d Cir. 2005)

(finding that scope of review under REAL ID Act

“mirrors” scope of habeas review).

Because habeas review has traditionally

included claims involving both the proper

“interpretation” of statutes and their “application”

(St. Cyr, 533 U.S. at 302), Section 1252(a)(2)(D) must

be construed to encompass the application of law to

fact. See Ramadan, 479 F.3d at 652-54 (relying on

legislative history and traditional habeas law to

conclude that “the phrase ‘questions of law’ as it is

used in... the Real ID Act includes review of the

application of statutes and regulations to undisputed

historical facts’); Chen, 471 F.3d at 326-27 (finding

that the “application” of statutes and regulations was

traditionally reviewable in habeas); Kamara, 420

F.3d at 213-15 (3d Cir. 2005) (same).

Given the Suspension Clause and Congress’

clear intent to preserve the scope of habeas review,

there was no basis for the court of appeals to

narrowly construe the reference to “questions of law”

in Section 1252(a)(2)(D) to exclude claims involving

the application of law to fact. See St. Cyr, 533 U.S.

at 299-300 (finding it “fairly possible” to construe the

1996 jurisdictional provisions to provide review over

the alien’s retroactivity claim, emphasizing that this

interpretation avoided the “serious” Suspension

Clause issues that would have been triggered by

precluding all review over a ciaim that was

traditionally cognizable in habeas); Ramadan, 479

F.3d at 652-54 (construing Section 1252(a)(2)(D) to

cover claims involving the application of law to fact,

stating that “a narrower interpretation would pose a

serious Suspension Clause issue”); Chen, 471 F.3d at

326-27 (same); see also Gerald L. Neuman, On the

Adequacy of Direct Review After the REAL ID Act of

2005, 51 N.Y.L. ScuH. L. REV. 133, 1389-42 (2006) (to

avoid constitutional concerns, the REAL ID Act

should be construed to preserve review over claims

involving the “application” of legal standards).

In holding that Section 1252(a)(2)(D) applies

only to pure questions of law, the Seventh Circuit

failed to acknowledge this relevant legislative

history, or cite to this Court’s decision in St. Cyr or

the voluminous body of immigration habeas law

discussed in St. Cyr. In particular, the court of

appeals failed to explain whether it believed that

habeas review did not traditionally cover claims

involving the application of law to fact, or

alternatively, that it did not believe that the Real ID

Act was intended to preserve review over the types of

claims traditionally reviewable in habeas.!%

13 The other circuits that have limited Section 1252(a)(2)(D) to

pure questions of law — the Sixth and Tenth Circuits — have

been even more cryptic in their analysis. In fact, those circuits

relied heavily on the initial decisions issued by the Second

Circuit in Chen and the Ninth Circuit in Ramadan, yet both of

those courts, as noted, withdrew their initial decisions on

rehearing. See, e.g., Almuhtaseb, 453 F.3d at 747-48 (relying on

now-withdrawn decisions in Ramadan and Chen); Ferry, 457

F.3d at 1130 (relying on now-withdrawn decision in-Ramadan ).

2. The asylum filing exceptions are also not

discretionary, as some courts of appeals have held.

See, e.g., Ferry, 457 F.3d 1117. The phrase “to the

satisfaction” could not have been intended to signal

that the Attorney Generai has unreviewable

discretion because that would render those words

redundant. Congress included the phrase “to the

satisfaction” in other provisions where it also

expressly stated that the “Attorney General has sole

discretion.” See Ramadan, 479 F.3d at 655-56 (citing

as examples 8 U.S.C. 1182%h)(1)(A) and 8 U.S.C.

1182(a)(9)(B)(v)). Thus, the words “to. the

satisfaction of the Attorney General” were not

intended to vest the Attorney General with

unreviewable discretion over the “changed” or

“extraordinary” circumstances determination, but

rather, to provide an objective standard of proof.!4

These circuits have declined to revise their own rulings in light

of the amended decisions from the Second and Ninth Circuits.

In particular, these courts have rehed upon the

discussions in the now-withdrawn Chen and Ramadan

decisions regarding the portion of Joint House-Senate

Conference Report which noted that the qualifier “pure” was

deleted from the final bill because it was’ viewed as

“superfluous”. See, e.g., Almuhtaseb, 453 F.3d at 747-48 (citing

Chen’s discussion of the Conference Report). But as the Second

and Ninth Circuits subsequently held in their amended

decisions, that deletion simply reinforced the Conference

Report’s observation that courts could review only the “legal

elements’ of “mixed questions of law and fact.” H.R. Rep. No.

109-72, at 175 (2005); Chen, 471 F.3d at 325-26 (noting the

Conference Report's explanation for the deletion of the word

“pure” before “questions of law” but rejecting contention that

Section 1252(a)(2)(D) does not encompass the application of law

to fact); Ramadan, 479 F.3d at 653-54 (same).

14 Indeed, the relevant regulations and the agencys own

training manual show that the phrase designates an objective

Accordingly, the changed and_ extraordinary

circumstances exceptions are no: discretionary and

may be reviewed under Section 1252(a)(2)(D).

* * * *

The court of appeals erred in holding that it

could not review whether the asylum filing

exceptions were properly applied to petitioner.

Judicial scrutiny of an agency’s application of a legal

standard is critical for effective review of the legal

standard itseif, particularly in contexts where, as

here, a substantive standard is given concrete

meaning through case-by-case adjudication. Without

such review, an agency could effectively eviscerate a

statutory standard by consistently announcing the

correct legal rule but de facto applying a standard

that is more stringent than the one formally

announced.

This case presents an ideal vehicle for

resolving the deeply entrenched circuit split at issue

here. The Seventh Circuit expressly decided this

case on the basis of Section 1252(a)(2)(D). Thus this

case will not only allow the Court to resolve the

specific disagreement among the courts of appeals

regarding their jurisdiction to review the asylum

standard of proof. See Asylum Officer Basic Training Course -

One-Year Filing Deadline (Nov. 30, 2001), App. 41a (“The

standard of proof to establish changed or extraordinary

circumstances is proof to the satisfaction of the Attorney

General. This is a reasonableness test, i.e., it must be

easonable for the asylum officer, immigration judge, or BIA to

conclude that e changed or extraordinary circumstance

exists.”). The controlling regulations also make clear that the

words “to the satisfaction of the Attorney General” should be

understood as an vbjective standard of prouf. See 8 C.F.R.

1208.4(a)(2); 1208.4(a)(5) (formerly at 208.4)

filing exceptions,

but also to provide essential

guidance on the broader question of the proper scope

of Section 1252(a)(2)(D).

CONCLUSION

The petition for writ of certiorari should be

granted.

LEE GELERNT

STEVEN R. SHAPIRO

American Civil Liberties

Union Foundation

125 Broad Street, 18t

Floor

New York, New York

10004

(212) 49-2500

LUCAS GUTTENTAG

JENNIFER C. CHANG

American Civil Liberties

Union Foundation

39 Drumm Street

San Francisco,

California 94111

(415) 343- 0770

April 2008

Respectfully submitted,

CHARLES ROTH

Counsel of Record

National Immigrant

Justice Center

208 South LaSalle Street,

Suite 1818

Chicago, IL 60604

(312) 660-1613

Loul!Is S. CHRONOWSKI, JR.

S7EPHEN J. BROWN

Seyfarth Shaw LLP

13i South Dearborn,

Suite 2400

Chicago, IL 60603

(812) 460-5804

APPEN SIX

Appendix A

In the

United States Court of Appeals

For the Seventh Circuit

No. 07-1548

ARAMANDO JIMENEZ VIRACACHA, et ail.,

Petitioners,

MICHAEL B. MUKASEY, Attorney General

of the United States,

Respondent.

Petition for Review of an Order of the

Board of Immigration Appeals.

ARGUED DECEMBER 7, 2007—DECIDED MARCH 3,

2008

Before EASTERBROOK, Chief Judge, and

MANION and KANNE, Circuit Judges.

EASTERBROOK, Chief Judge. Armando Jiménez

Viracacha arrived in the United States from

Colombia in December 1998 with a visitor's visa

authorizing a six-month stay. He did not leave when

the visa expired. In December 2000 his wife and

three children arrived, also holding visitors’ visas.

They did not leave either. Jiménez sought asylum in

2002 for himself and his family. There is, however, a

one-year deadiine for requesting asylum, see 8

U.S.C. §1158(a)(2), and Jiménez’s application was

filed almost three years late. Immigration officials

have the authority to allow untimely claims if the

delay is justified by changed circumstances, see

Appendix A

§1158(a)(2)(D), 8 C.F.R. §1208.4(a), but the decision

whether a change has occurred is committed to

agency discretion. 8 U.S.C. §1158(a)(3).

An immigration judge concluded that Jiménez

had not established “the existence of changed

circumstances which materially affect the applicant's

eligibility for asylum”, §1158(a)(2)(D). He argued

that he fears the Revolutionary Armed Forces of

Colombia (FARC), an insurgent group that

threatened him with death after he opposed its

operations. But because he told the immigration

judge that he had left Colombia in 1998 precisely

because of the FARC’s threats, the IJ found that he

should have applied for asylum immediately on

arriving in the United States. Jiménez testified that

he delayed because he expected the domestic

situation in Colombia to improve, but that it had

instead (in his view) become worse. The IJ did not

see this as an adequate justification, both because

conditions in Colombia had not changed materially

and because hoping for improvement does not justify

delay in filing.

A possibility that Jiménez does not mention—

that he waited until his family had reached the

United States, lest his application embarrass the

family’ s claim to be tourists who planned to return to

Colombia within six months—cannot be ruled out,

but it would not justify an exception to the one-year

time limit. Jiménez also maintained that he had not

understood the asylum process until recently, but the

IJ did not see this as the sort of “extraordinary

circumstances” that permits a late filing under

§1158(a)(2)(D) even when country conditions have

not changed materially. The IJ did, however, grant

the family’s request for withholding of removal on

Appendix A

the ground that they would be in danger from the

FARC should they return to Colombia while that

nation’s civil unrest continues.

Jiménez and his family appealed to the Board

of Immigration Appeals, which endorsed the IJ’s

decision. Next they filed a petition for review in this

court, precipitating a series of jurisdictional

questions.

The first is whether the BIA’s decision is

“final,” a condition of our jurisdiction under 8 U.S.C.

§1252(a)(1). After resolving the Jiménez family’s

appeal, the Board remanded to the IJ under 8 C.F.R.

§1003.1(d)(6) for a background check to ensure

eligibility for withholding cf removal. The Attorney

General contends that this remand makes the BIA’s

order non-final—and he adds that, because the

family did not appeal to the Board from the IJ’s order

in September 2007 confirming its entitlement to

withholding of removal, judicial review is now

impossible.

Yet how could the Jiménez family appeal to

the Board from a favorable decision? (Recall that the

only question the Board instructed the IJ to consider -

was whether the family remained eligible for

withholding of removal.) The Attorney General’s

position leaves the aliens trapped: They can't seek

judicial review of the asylum question because the

Board’s order is non-final, and they can't seek review

of the IJ’s decision because it is favorable. This

. situation is common in administrative law when a

court (or appellate body of an agency) remands for

consideration of a question different from the one on

which judicial review is sought. The normal rule is

that the original decision on the only question open

Appendix A

to judicial review is “final.” See, e.g., Forney v. Apfel,

524 U.S. 266 (1998) (collecting authority). This is an

approach that we have applied to immigration

proceedings. Take, for example, Zahren v. Gonzales,

487 F.3d 1039 (7th Cir. 2007), in which the Board

affirmed the IJ’s removal order but remanded so that

the IJ could decide whether to allow the aliens the

privilege of voluntary depa~*ure. We concluded that

this is a “final” order because the only question

within the judicial ken—whether the record

supported an order of removal—had been

conclusively resolved. Everything that remained was

a matter of administrative discretion. Just so here.

Section 1252(a)(1) specifies, as the reviewable

action, not simply a “final” order of the Board, but a

“final order of removal” (emphasis added). We asked

the parties whether such an order exists—-whether

there is even a controversy within the scope of

Article III. After all, the IJ allowed the aliens to

remain in the United States by granting withholding

of removal. How is an order providing that the aliens

will not be removed a “final order of removal’? And

what difference does it make whether the reason

why the aliens remain in the United States is a grant

of asylum or a decision by the agency to withhold

removal? Either way the aliens remain, which is

their goal. Where’s the controversy? The judicial

branch reviews an agency’s decision adverse to an

applicant, not an agency’s statement of reasons for a

decision favorable to an applicant.

There is a statutory answer to the question

“how can a decision to withhold removal be a final

order of removal?” A definitional clause in the

statute says that an “order of deportation” (which

since 1996 is the same thing as an “order of

Appendix A

removal”) means an order of the agency “concluding

that the alien is deportable or ordering deportation.”

8 U.S.C. §1101(a)(47)(A) (emphasis added). The IJ

and Board did not “order” the Jiménez family’s °

removal, but they did find the family’s members

“removable”. The family conceded as much: they are

citizens of Colombia and lack visas authorizing

continuing presence in the United States. Any order

withhol¢cing removal supposes that the alien is

“removable”. See Guevara v. Gonzales, 472 F.3d 972,

976 (7th Cir. 2007); Blagaic v. Flagg, 304 F.2d 623

(7th Cir. 1962). The IJ could have avoided any

uncertainty by entering a formal order of removal

and then staying its effect by granting the petition to

withhold removal, but the absence of this paperwork

is not dispositive.

As for the Article IIT issue: there are enough

differences between asylum and withholding of

removal to yield a live controversy. One difference is

that holders of asylum are entitled to remain in the

United States until conditions in their home

countries improve or the risk of persecution

otherwise declines. Withholding of removal, by

contrast, confers not a privilege to remain in the

United States but only an immunity against removal

to a particular country. See 8 C.F.R. §1208.16(f). An

alien still may be removed to any other nation on the

list in 8 U.S.C. §1231(b) that is willing to accept him.

Another difference is that persons who have been

granted asylum may leave the United States and

return, while withholding of removal dees not permit

reentry into this country. Any member of the

Jiménez family who leaves the United States will] not

be allowed back. See 8 C.F.R. §1241.7. Yet another

difference is that aliens in asylum status eventually

Appendix A

may become permanent residents. 8 C.F.R. §209.2.

Withholding of removal confers no such opportunity.

There are more differences, but these three are

enough to show that asylum status is more valuable

to an alien than withholding of removal, so a real

controversy is presented by the Jiménez family’s

petition for judicial review.

This is as far as we can go, however, because

the IJ and BIA enforced against Jiménez the one-

year limit on applying for asylum. Section 1158(a)(2)

allows the agency to accept untimely applications

under certain circumstances, but “[n]o court shall

have jurisdiction to review any determination of the

[agency] under paragraph (2).” 8 U.S.C. §1158(a)(3).

To this exception §1252(a)(2)(D) adds a proviso:

“constitutional claims or questions of law” remain

reviewable. Jiménez and his family contend that the

IJ and BIA erred on a question of law. But both the

Board and the IJ stated with precision the rules for

exceptions to the one-year deadline. The IJ found

that Jiménez had deliberately refrained from making

a timely application for asylum, and that any change

in conditions in Colombia since then is not material.

The first is a conclusion of fact and the second is an

application of law to fact; neither rests on or reflects

a legal mistake.

Petitioners’ position boils down to the

contention that every error an agency can make is in

the end one of “law’—if, for example, it makes a

decision unsupported by substantial evidence, that’s

an error of law because the law requires agencies to

found their decisions on substantial evidence. If this

is so, however, then §1158(a)(3) and similar

provisions, such as §1252(a)(2)(A), (B), and (C), have

been erased from the statute books. They never have

Appendix A

any force; the proviso in subsection (D) covers every

case. That can’t be right—courts don’t read one

statute to obliterate others, unless there is no way to

make them coexist—and we have held that it is not

right, for §1158(a)(3) and §1252(a)(2)(D) in

particular. We have dismissed petitions because of

§1158(a)(3), see, e.g., Kaharudin v. Gonzales, 500

F.3d 619 (7th Cir. 2007); Nigussie v. Ashcroft, 383

F.3d 531 (7th Cir. 2004); Viadimirova v. Ashcroft,

377 F.3d S90, 695 (7th Cir. 2004), and have held that

the proviso in §1252(a)(2)(D) is limited to “pure”

questions of law—situations in which a case comes

out one way if the Constitution or statute means one

thing, and the other way if it means something

different. See Cevilla v. Gonzales, 446 F.3d 658 (7th

Cir. 2006); Leguizamo-Medine v. Gonzales, 493 F.3d

772 (7th Cir. 2007).

The Jiménez family asks us to reconsider

Cevilla in light of later decisions in other circuits.

The family relies particularly on Xiao Ji Chen v.

Department of Justice, 471 F.3d 315, 329-30 (2d Cir.

2006), and Ramadan v. Gonzales, 479 F.3d 646 (9th

Cir. 2007), which it says allow a court of appeals to

review the agency’s application to a given situation

of a law whose meaning is not contested. The aliens

also suggested that the Supreme Court might say

something in Ali uv. Achim, 468 F.3d 462 (7th Cir.

2006), cert. granted, 128 S. Ct. 29 (2007), that would

bear on this subject. The writ of certiorari in Ali has

been dismissed on the parties’ stipulation, however,

so there is no need to wait further. Nor need we

spend time on Xiao Ji Chen; the second circuit has

‘since demonstrated that it agrees with Cevilla, any

dicta in Xiao Ji Chen to the contrary

notwithstanding. See Gui Yin Liu v. INS, 508 F.3d

Appendix A

716 (2d Cir. 2007). That leaves only the ninth

circuit's opinion in Ramadan.

The panel in Ramadan held that

§1252(a)(2)(D) authorizes judicial review of all

“mixed questions of law and fact”, including all

applications of law to fact. Only pure findings of fact

are outside the scope of subsection (D), the panel

concluded. Because no administrative case can be

decided without applying some law to some facts,

that understanding of §1252(a)(2)(D) vitiates all

clauses in the statute, including §1158(a)(3), that

limit judicial review of particular classes of decisions.

Here, for example, the IJ had to decide whether any

change of conditions in Colombia is “material,” the

sort of question that the Supreme Court treats as one

of fact. See United States v. Gaudin, 515 U.S. 506

(1995). Cf. Pullman-Standard v. Swint, 456 U.S. 273

(1982); Icicle Seafoods, Inc. v. Worthington, 475 U.S.

709 (1986). The panel in Ramadan conceded that

§ 1252(a)(2)(D) does not say that “mixed” or

“ultimate” questions are reviewable—and, as we

noted in Cevilla, the legislative history of

§ 1252(a)(2)(D) is incompatible with extending that

proviso beyond pure questions of law—but adopted

its interpretation to avoid any need to consider

constitutional objections to §1252(a)(2)(D).

It is hard to appreciate what those objections

might be; the Constitution itself allows Congress to

create exceptions to the jurisdiction of the federal

courts. Provisions foreclosing judicial review of

particular administrative decisions are common. The

most famous such exclusion is in the Administrative

Procedure Act of 1946, 5 U.S.C. §701(a)(2) (decisions

“committed to agency discretion by law” are not

judicially reviewable), and to our knowledge no

Appendix A

serious argument has ever been made that §701(a)(2)

is unconstitutional. The Supreme Court has applied

it repeatedly without a single Justice expressing

doubt about its validity (though there is often debate

about whether a given question has been so

“committed”). See, e.g., Lincoln v. Vigil, 508 U.S. 182

(1993); Heckler v. Chaney, 470 U.S. 821 (1985). Given

the preservation of legal and constitutional claims in

§1252(a)(2)(D), the preclusive effect of §1158(a)(3) is

less sweeping than that of the APA. The use that the

panel in Ramadan was able to make of the “canon of

avoiding constitutional questions” shows why many

thoughtful people think the canon a bad one—for

constitutional questions lurk everywhere, and judges

who seek to avoid them can end up rewriting

statutes that would be deemed perfectly valid if the

question were faced and resolved. See Henry J.

Friendly, Benchmarks 210 (1967); William K. Kelley,

Avoiding Constitutional Questions as a Three-Branch

Problem, 86 Cornell L. Rev. 831 (2001).

Nine judges dissented from the denial of

rehearing en banc in Ramadan, 504 F.3d 973 (2007).

Judge O’Scannlain’s opinion for this group covers all

that need be said about the panel’s decision. He

points out not only some of the problems that we

have mentioned, but also the fact that the ninth

circuit stands alone: at least eight circuits read

§1252(a)(2)(D) as limited to pure questions of law.

(Judge O’Scannlain counted only seven; he missed

our opinions in Cevilla and Leguizamo-Medina.) The

opinion for the three-judge panel in Ramadan does

not persuade us that Cevilla should be overruled;

instead Judge O’Scannlain’s opinion for nine judges

persuades us that Cevilla should not be disturbed.

Appendix A

Section 1158(a)(3) says that we lack

jurisdiction. Section 1252(a)(2)(D) does not restore

jurisdiction when, as in this case, the governing rules

of law are undisputed. The aliens remaining

arguments have been considered but do not require

discussion. The petition for review is dismissed for

want of jurisdiction.

10a

Appendix B

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION

REVIEW

UNITED STATES IMMIGRATION COURT

Chicago, Illinois

FILE A 96 134 970 August 31, 2005

FILE A 96 134 97]

FILE A 96 134 972

FILE A 96 134 973

FILE A 96 134 974

In the Matters of

IN REMOVAL

PROCEEDINGS

ARMANDO JIMENEZ- )

VIRACACHA )

ILYANA MARITZA )

JIMENEZ-LOPEZ )

MARIA PAOLA JIMENEZ- )

LOPEZ )

IRMA YOLANDA JIMENEZ.- _)

LOPEZ )

ANDRES FELIPE )

JIMENEZ-LOPEZ )

)

Respondents

CHARGES: Section 237(a)(1)(B) to Section

101(a)(15) of the Act — Remained

longer than permitted

APPLICATIONS: Political asylum, withholding,

and protection under the Torture

Convention; alternatively for

voluntary departure

lla

Appendix B

ON BEHALF OF ON BEHALF OF DHS:

RESPONDENTS:

Joseph M. Yeung, Esquire

Steven Brown, Esquire Assistant Chief Counsel

ORAL DECISION OF THE IMMIGRATION JUDGE

The respondents consist of a family. The

principle respondent in this case is Armando

Jimenez-Viracacha. He is the father/hushand of the

family. He will be referred to as the male respondent

henceforth. It is through him that the principle

claim in the case, namely for political asylum, is

transmitted. His experiences form the basis of the

claim. His wife, Irma Jimenez-Lopez, will be

denominated the female respondent. She did testify

in this hearing. The children will r t be specifically

referred to since their experiences do not support the

claim for political asylum.

The male respondent arrived in the United

States on December 7, 1998. He had a visitors visa.

He was placed under proceedings with a Notice to

Appear. It was filed against him in Chicago. He

admitted the allegations and conceded the charge. I

find that the charge is met in this case, that he has

violated his visa by remaining longer than permitted.

In addition, the female respondent and the

children also arrived in the United States with

visitors visas, however on December 6, 2000, with

authorization to remain until June 5, 2001. They do

not contest the allegations and concede removability

on their charges. I find them all subject to removal.

None of the respondents has designated or

chosen a country of removal. Therefore, the Court

has designated or chosen Colombia if necessary. See

]2a

Appendix B

Section 241(b) ef the Act. See also Matter of Linnes,

Int. Dec. 3000.

In their application, the respondents claim

that they have suffered past persecution and also

have a well-founded fear of persecution if returned to

Colombia on account of their political opinion and

membership in a particular social group. The term

“refugee” encompasses a claim based on past

persecution or on a well-founded fear of persecution

because of race, religion, nationality, membership in

a particular social group, or political opinion. The

burden of proof is on the respondents.

THE EVIDENCE

The Male Respondent’s Testimony

The male respondent testified on March 16,

2005 to the following:

He testified that he left Colombia on

December 7, 1998 because he was confronted by the

FARC, who made attempts on his life. On cross-

examination, he was asked whether the same

experiences occurred to his extended family

members, in other words, to his siblings. He

admitted that he had two brothers and three sisters.

A brother, Walter, works for a company regarding

public transportation. Richard, who is 38 years old,

works as a marketing advisor in Colombia. Adriana

lives in Bogota and is 27 years of age. He admitted

that they were all raised by the respondent’s

stepfather.

Th. respondent was questioned about his

intentions on his arrival in the United States in

1998. He acknowledged that he did arrive with a

tourist visa, but claimed that he intended to stay

l3a

Appendix B

only three or four months. But he claimed that that

changed radically because of the situation. He

described the situation as changing for the worst.

He claimed that initially he had faith in the peace

process by then-President Pastrana. But he claimed

that when the peace process and its program

advocated by President was not giving results, he

lost his faith in that process.

Respondent, in addition, testified about a

number of threats which he experienced in Colombia.

He claimed that he was assaulted after being

detained by members of FARC. On September 23,

1998, he claimed that men on motorbikes stopped

him, putting a gun to his head. After his release and

after his brief detention, he filed a complaint. He

has incorporated the complaint as part of Exhibit 5.

The respondent’s spouse also testified. The

female respondent testified that her husband told

her that after he had left for work one day, that is, in

September 23, 1998, he was intercepted by men ona

motorcvcle and that they put a weapon to his head.

In addition, she testified that on November 28, 1998,

she received phone calls again asking her about him.

The men who called identified themselves as

members of FARC, according to the female

respondent.

She testified that even after he left Colombia,

she continued to receive phone calls threatening the

family and asking for the male respondent. She cited

those as ones she received in March 1999 in which

she told the caller that her husband was out of the

country. She claimed that the caller told her that

were he to return to Colombia, he would be killed.

She claimed that the calls continued in June 1999

l4a

Appendix B

and that she received a number of calls in 2000. She

claimed they would call her and they would hang up.

The respondent presented an expert witness,

Professor Herbert Braun, who testified

telephonically today. He presented his curriculum

vitae and also an affidavit. He was recognized by a

stipulation of the parties as an expert on the history

of Colombia and also on current conditions there. He

claimed he had written a book describing violence in

the 1950's. He described the FARC as comprised of

70 different connected cells, which have become

immensely wealthy from narco-trafficking and have

merged with criminal gangs. He further described

the FARC as an organization which has no formal

induction ceremony.

In addition, he was asked “How did the FARC

behave in the first few years of this decade?’ He

answered that in 2000, 2001, and 2002, its influence

has “waxed and waned.” He claimed that there has

been an increase of violence and that the FARC

seeks to intimidate and humiliate those it perceives

as threats to them. He described the threats as

being “lob-like,” creating a “pervasive situation.”

Finally, he averred that if the respondents were to

live in another city away from where they were

before, they would have to live very secretive lives

and that they would be very intimidated. He implied

that that was not a realistic option for them if they

were returned to Colombia.

Other Evidence

The respondent has presented documents in

support of his claim. Of particular note are those in

Exhibit 5. He has presented statements, in Exhibit

lSa

Appendix B

5, Item 22-A, attesting to reports that he made after

the September 24, 1998 incident.

I have also reviewed the statement from the

respondent’s stepfather, Jay Gilberto Hernandez, in

which he states that the male respondent was

involved in his campaign and, in addition, that he

left in order to look for new horizons and in order to

protect his life and seek a better future for his

children.

ANALYSIS

The One-Year Bar

It is clear that the respondent has not filed an

application for asylum within one year of his arrival.

The application was filed in September 2002.! The

respondent claims that his failure to file the

application is excusable because there were

extraordinary circumstances which excepted him

from the one-year bar and that, in addition, there

were material changes in country condition. His

advocate states that in the beginning in 2000, “a

quasi near-exponential increase in violence practiced

by the FARC” created a material change in country

conditions.

The term changed conditions is described with

examples in 8 C.F.R. Section 1208.4. “Changed

conditions” refers to circumstances materially

affecting the applicant’s eligibility for asylum. They

may include but are not limited to: (a) changes in

conditions in the applicant’s country; (b) changes in

the applicant's circumstances that materially affect

the applicant’s eligibility for asylum. Further, see

' The specific date of receipt of the application was September

25, 2002. See Exhibit 2, page one.

l6a

Appendix B

(ii), the applicant shall file ar asylum application

within a reasonable period given those changed

circumstances.

The term extraordinary circumstances adds to

but opens another area in the exception. It must

refer to events or factors directly related to failure to

meet the one-year filing deadline and describes those

circumstances as including but not limited to: serious

mental illness or a serious physical disability, a legal

disability, ineffective assistance of counsel, or a legal

status such as temporary protected status of counsel,

or a legal status such as temporary protected status

or lawful immigrant or non-immigrant status, et

cetera. It may include the death or serious illness or

incapacitation of the applicant’s legal representative

or member of the applicant’s immediate family.

The respondent testified that he came to

United States with the intention of visiting for three

or four months and expressed a desire to go to

Disney World and with the hope that the peace

process at that time, that is, in 1998, instituted by

President Pastrana would bear fruit. It was only

when it did not that he applied for asylum.

I have concluded that the respondent has not

established material change in country conditions or

extraordinary circumstances in this case to qualify

for an exception to the one-year bar. My reasons are

as follows:

First, the respondent has testified that he

entered the United States with the purpose of

staying for only three or four months. By

implication, that suggests that he was willing to

return after that period. His reliance on the peace

process as providing security for him on his return to

17a

Appendix B

Colombia is belied by the historical record in which

the peace process, that is, the Pastrana peace

process, was never credited by most informed

observes with having even a 50 percent chance of

success. History has certainly verified that

assessment.

In addition, even if one were to accept for the

sake of argument the respondent’s contention that he

relied on the Pastrana peace initiative, that is,

setting up a separaie safe haven for the FARC

guerillas in San Juan de Calle Guan as a basis for

meaningful peace in Colombia, it is unclear why he

would have decided in September 2002 that that

process was over. There were many indications prior

to that time that the process had failed: Mr.

Marulanda’s, the head of FARC, failure to meet with

the president, the increase of violence cited by the

respondent's own expert. So there’s no correlation

between the respondent’s decision to file and filing of

the application in September 2002 with his stated

reasons for delay.

In addition, there is nothing that in my

assessment rises to the level of an extraordinary

circumstance in the respondent’s experience in the

United States. He claims that unnamed

representatives suggested to him that he didn’t have

to apply for asylum and that he decided only later to

do so. Yet, when contrasted with the reasons or

examples given in the regulations, these

justifications pale significantly. They are certainly

not simular to serious illness or legal disability or

ineffective assistance of counsel or death, serious

iliness, or incapacity of the applicant’s legal

representative. Although the list isn’t all-inclusive,

the seriousness of such disabilities, either physical or

18a

Appendix B

legal, are clear. The respondent is suffering from no

such disability. He’s a middle-class person, obviously

well-educated, certainly well-schooled. The

explanations in my assessment that he’s offered are

more similar to excuses than justifications for delay.

As far as the material change in country

conditions is concerned, I don’t find that that

provides the respondent with support. No one can

deny that there were many significant developments

in Colombia during the period from December 1999,

if one calculates failure to file from that date

forward, to when he did file in September 2002. The

question is whether they changed the circumstances

in such a way as to cause a new situation to e&ist,

one that hadn’t existed during the period in which

the respondent was obligated to file, that is, between

December 1998 and December 1999. I do not believe

that that is so.

What is clear is that the civil war which had

existed for many years prior to that date in Colombia

continued and intensified. There was of course and

has been a change of administration. Different

leaders have been elected. However, the conflict has

remained essentially the same, namely that the

guerillas, led by Mr. Marulanda, with a sizeable

following and a sizeable armed force, together with

other guerilla movements, are endeavoring to

overthrow or to sabotage the legally constituted

government. There of course is another group, the

paramilitaries, which have recently been amnestied

by the Colombian government. But they are not

implicated in this claim.

During the period that the respondent

should've filed and failed to file the application, that

19a

Appendix B

conflict continued. Essentially, the nature of the

conflict did not change. The government, the same

government, in fact the same administration

remained in power. Consequently, for these reasons,

] have concluded that there were no material

changes in country conditions or in the respondent's

circumstances which materially affected his

eligibility for asylum which excuse his failure to

comply with the one-year deadline.

Having concluded that the respondent is

barred for political asylum because he failed to file

his application, I must consider his application on

the merits. The Department of Homeland Security

contends that the application fails, that the

respondent was not “targeted for political reasons”

and “the incidents described have more to do with

criminal reasons than with political reasons.”

Therefore, there is no nexus between a required

ground and the respondent’s claims of mistreatment

or persecution. This is exemplified by the number of

his extended family members who are still living in

Bogota and who have not been either threatened or

actually mistreated.

In contrast, the respondent contends that he

has met the requirement for withholding because he

has shown past persecution and that in the 7th

Circuit, that requirement or that condition for a

grant of withholding is met by a showing of “more

than mere harassment” and that “mere threats alone

would do it” and that since the family has been

exposed to more than mere harassment, they have

established that their return to Colombia would

cause them persecution and, in addition, they have

established past persecution, which requires that the

Department of Homeland Security present. evidence

20a

Appendix B

to over come that presumption, that is, the

presumption of a well-founded fear of future

mistreatment.

This Court disagrees with the respondent’s

assessment of the jurisprudence on past persecution.

In a recent decision by the 7th Circuit Court of

Appeals, it described examples where past

persecution was found. See Dandan v. Ashcroft (7th

Cir. August 11, 2003). In that case, where the 7th

Circuit concluded that the applicant had not shown

past persecution, it cited to cases where “past

persecution” was found. For example, at page 10 of

Dandan, it cited to Asani, where it held that “being

detained and beaten by the police, who in the process

kicked out Asani’s teeth, was sufficient to show past

persecution.”

In addition, “This court agreed with the BIA’s

finding in Baduva, that a single beating in which a

petitioner was punched and had his face bruised and

his finger broken constituted past persecution.” The

court went on to say, “We do not hold that lost teeth

or broken bones are the sinaquenon of persecution.

But these specifics indicate the severity of the

beating and support its claim to be considered

persecution.” See Dandan, at page 11. In this case,

the respondent is complaining and has testified

about a detention. The detention was brief and he

was released without harm. He contends that the

pointing of a gun to his head constitutes torture. |

disagree. I do not think that the jurisprudence

supports hi contention in that regard.

Having concluded that the respondent has

misstated past persecution, I must continue to assess

the sufficiency of the evidence in this case and

2la

Appendix B

determine whether he has established a clear

probability of persecution. For the following reasons,

I concluded that he has established a clear

probability of persecution on account of political

opinion:

That was certainly the opinion first of his

expert. It is uncontested that in November 1998, he

was shot at by members of the FARC because of his

political activism on behalf of his stepfather.

Additionally, he received numerous threats from

FARC members in 1998 because of this political

activism. Thus, there is a clear pattern of

intimidation against the respondent as a result of

this activism.

It is worth noting that he professed an

intention to continue supporting his work, that is,

his stepfather’s work against the FARC. Although

approximately seven years have elapsed since the

male respondent’s departure from Colombia, if he

returned and continued to campaign against the

FARC, that very activity, which caused the FARC to

target him before hi departure, would likely

engender the same response of threats. Therefore,

the FARC’s ongoing presence in Colombia, its

undisputed attempts on the respondent’s life, at least

threats to him in 1998, and finally his intention of

returning to political activism in Colombia were he

sent back there give rise to the realistic likelihood

that he will be mistreated because of his political

opinion.

For the purpose of this analysis, 1 have and

must assess the respondent’s credibility. What little

I can say about that is that there were no important

inconsistencies between the respondent’s testimony

Appendix B

and the affidavit that he presented. He has

presented some evidence, that is, statements,

attesting to the complaints that he made in 1998

after the events in September and November 1998.

He has also presented a statement from his

stepfather attesting to his work with him on his

campaigns.

I disagree with the Department’s contention

that the incidents have more to do with criminal

than with political reasons. The respondent, if his

testimony is believed, had an adversary not in a

common criminal, but in a large organization with

capacity to inflict serious harm on him and his

family. This is not a petty criminal or an individual

acting for the reasons of material gain alone,

interested only in appropriating its victim’s property,

but rather an organization which had a political

agenda. Ofcourse, the existence of a political agenda

on the part of the persecutor is not in itself sufficient

to establish the nexus, but rather it must be shown

that the victim’s or the applicant’s political beliefs as

manifested in the applicant’s actions engendered the

mistreatment. I believe that the respondent has

shown that in this case. It’s for that reason that I’m

granting him withholding of removal.?

2 Having decided to grant the respondent withholding of

removal, I will of course not order him removed. Although in

the some cases the Department has insisted that the Court

designate a country of removal, I agree to designate Colombia.

As I understand it, the Department claims that they have the

right to try to find a country other than Colombia to send the

respondent. In addition, the withholding of removal to

Colombia in my view makes moot the request for voluntary

departure since there is no order entered directing the

respondent’s or applicant’s expulsion to the country of his

citizenship.

Appendix B

In summary, I have concluded that the

respondent has established eligibility and qualifies

for withholding of removal and has established a

clear probability of persecution for his political

opinions.’

Finally, turning to protection under the

Convention Against Torture. The respondent

contends that he was tortured. I disagree. First, I

do not think that the respondent's experiences rise to

the level of torture as expressed in Article 1 of the

Convention Against Torture. See the definition of

torture. Secondly, the torture that the respondent or

mistreatment that the respondent contends rises to

the level of torture was not inflicted by a

government. In Matter of S-V-, the Board has held

that to qualify for protection under the Torture

Convention, the torture must be inflicted by the

government and not by a third-party.

The Board has specifically rejected the

contention that if mistreatment is caused by a third-

party, then the government, because the torture

occurred, has implicated the mistreatment. The

respondent contends in contrast that the

“acquiescence of the Colombian government” is

manifested by its allowance of the types of

mistreatment that the respondent experienced in

Colombia. The 7‘ Circuit case law does not support

the respondent’s position. For example, in Roman v.

INS (7th Cir. December 5, 2000), the court stated,

“An applicant must show that the government

condoned it or at least demonstrated a complete

3 The respondent has not developed the issue of whether he

belongs or is a member of a particular social group. He hasn't

defined a social group. He hasn’t shown how he is a part of it.

See Nguyen v. INS (8th Cir. January 1998).

24a

Appendix B

helplessness to protect the victims, citing Galina v.

INS, 213 F.3d 955 (7th Cir. 2000).” In Galina v. INS

(7th Cir. May 22, 2000), the court held at page three,

“Since a finding of persecution ordinarily requires a

determination that government authorities, if they

did not actually perpetrate or incite the persecution,

condoned it or at last demonstrated a complete

helplessness to protect the victims.”

In this case, 1t cannot be said by informed

observers (see the State Department’s Country

Reports from 1998 to 2004) that the government of

Colombia has been helpless or condoned the violence

of the FARC guerillas or the ELN guerillas or the

paramilitaries. In fact, the historical record shows

that the Colombian government, by whatever

administration, by whatever political opinion, has

sought to control the country and reduce the level of

conflict. Their inability to do so does not indicate

that they are complicit in that violence. Based on

the BIA jurisprudence and the case law in the 7th

Circuit and also on the definition of torture

contained in the Torture Convention, I find that the

respondent does not qualify under those provisions of

the Torture Convention.

As noted, voluntary departure is moot in this

case.

Accordingly, the following orders are entered:

ORDER

IT IS ORDERED that the respondent's

applications for political asylum be denied.

IT IS FURTHER ORDERED that the

respondent’s application for withholding of removal]

be granted.

Appendix B

IT IS FURTHER ORDERED that the request

for protection under the Torture Convention be

denied.

CRAIG M. ZERBE

U.S. Immigration Judge

Appendix B

CERTIFICATION PAGE

I hereby certify that the attached proceeding

before CRAIG M. ZERBE, in the matter of:

ARMANL ) JIMENEZ-VIRACACHA

A 96 134 970

Chicago, Illinois

was held as herein appears, and that this is the

original transcript thereof for the file of the

Executive Office fer Immigration Review.

Nor . Badua (Transcriber)

Deposition Services, Inc.

6245 Executive Boulevard

Rockville, Maryland 20852

(301) 861-3344

May 5, 2006

{Completion Date)

Appendix C

U.S. Department of Justice Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 22041

Files: A96 134 970 — Chicago Date: Feb 13, 2007

A96 134 971

A96 134 972

A96 134 973

A96 134 974

In re: ARMANDO JIMENEZ VIRACACHA

ELIANA MARITZA JIMENEZ LOPEZ

MARIA PAULA JIMENEZ LOPEZ

IRMA YOLANDA JIMENEZ LOPEZ

ANDRES FELIPE JIMENEZ LOPEZ

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENTS: Stephen J.

Brown, Esquire

CHARGE:

Notice: Sec. 237(A)(1)(B), I&N [8U.S.C. §

1227(a)(1)(B)] —

In the United States in violation of

law (all respondents)

APPLICATION: Asylum

ORDER:

PER CURIAM. In a decision dated August 31,

2005, an Immigration Judge found that the

respondents established their eligibility for

withholding of removal, but denied their applications

for asylum and protection under the Convention

Appendix C

Against Torture. The Immigration Judge found that

the respondents were statutorily ineligible for

asylum relief because the lead respondent failed to

establish by clear and convincing evidence that he

filed his asylum application within 1 year of his last

arriva! in the United States, and also failed to

demonstrate changed or extraordinary circumstances

such as to qualify for an exception to the filing

deadline. See sections 208(a)(2)(B), (D) of the

Immigration and Nationality Act, 8 U.S.C. §

1158(a)(2)(B), (D); 8 C.F.R. § 1208.4(a). On appeal,

the respondents argue, among other things, that the

Immigration Judge erred by finding that the

circumstances of the respondents’ case do not fall

within an exception to the filing deadline.

Upon review of the record of proceedings, we

adopt and affirm the decision of the Immigration

Judge to the extent that he denied the respondents’

claim for asylum on the basis of the lead

respondent’s failure to timely file his application for

asylum,? and found that he failed to establish the

existence of extraordinary or changed circumstances

such as to exempt him from the time bar (I.J. at 6-

10). See Matter of Burbano, 20 I&N Dec. 872, 874

(BIA 1994) (noting that adoption or affirmance of a

decision of an Immigration Judge, in whole or in

part, is “simply a statement that the Board’s

conclusions upon review of the record coincide with

those which the Immigration Judge articulated in his

'3 On appeal, the lead respondent conceded that his application

was filed beyond the 1-year filing deadline, and only argues

that he qualifies for an exception to that deadline. See

Respondents’ Brief at 2.

Appendix C

or her decision”); sections 208(a)(2)(B), (D) of the Act;

8 C.F.R. § 1208.4(a).

In reaching this conclusion, we note that we

are not persuaded by the respondents’ argument that

the Immigration Judge’s decision must be reversed

because he misstated certain facts.4 We agree with

the Immigration Judge’s determination that, based

on the evidence of record, the respondents have

failed to establish the existence of extraordinary or

changed circumstances. See 8. C.F.R. § 1208.4(a).5

4 The respondents contend that the Immigration Judge was

inaccurate in his description of the lead respondent’s objective

in traveling to the United States (Respondents’ Brief at 6-7).

Regardless of the lead respondent’s initia] reason for obtaining

a visa, the record clearly indicated that he traveled to the

United States as a result FARC’s threats and activities. The

Immigration Judge's decision addresses the threats, and clearly

considered such threats substantial and credible as evidenced

by his grant of withholding of removal. Further, regardless of

the length of time that the lead respondent “intended” to stay,

or “did not want to stay any longer than” (Respondents’ Brief at

7), the fact remains that the lead respondent did not initially

file for asylum because he hoped conditions would improve in

his native country. We find that the outcome of the

Immigration Judge's ultimate determination is not affected by

the above discrepancies, not by the other factual distinctions as

described by the respondents: including, the description of the

level of the lead respondent’s education, and the name of a

United States Congressman. See Respondents’ Brief at 7-8.

5 Contrary to the respondents’ suggestion, we find that the

Immigration Judge's decision does not reveal that the

Immigration Judge applied an incorrect standard in evaluating

whether the respondents established an exception to the l-year

filing deadline. See Respondents’ Brief at 8-9. The

Immigration Judge cited the correct regulation in discussing

changed and extraordinary circumstances (I.J. at 7), 8 C.F.R. §

1209.4, and there is no indication that he applied the “clear and

convincing’ standard to his analysis of the filing deadline

30a

Appendix C

Accordingly, we agree that the lead respondent did

not timely file his asylum application and that the

respondents are statutorily ineligible for asylum.

On appeal, the respondents argue that certain

“administrative problems’—including a 50-minute

delay in starting their merits hearing, the inability

to present a witness by telephone, the Immigration

Judge’s “urging” to accept a second hearing to

complete the proceedings, and various interruptions

by the Immigration Judge — resulted in a violation of

their due process. See Respondents’ Brief at 17-20.

In this matter, considering the totality of the

circumstances we find that the respondents have

been afforded “a meaningful opportunity to be

heard,” and have failed to establish a due process

violation. See Kerciku v. INS, 314 F.3d 913, 917 (7th

Cir. 2003). Moreover, to prevail on a due process

claim, the respondents must show prejudice. See

Mojsilovic v. INS, 156 F.3d 743, 749 (7th Cir. 1998);

Shahandeh-Pey v. INS, 831 F.2d 1384, 1389 (7th Cir.

1987) (alien must produce concrete evidence that

violation of procedural protection actually had

potential to affect the outcome of the deportation

proceedings). We find that the respondents have

failed to establish that the “administrative problems”

affected the determination of whether they

exceptions. In addition, although the respondents argue that

the Immigration Judge improperly limited the time-frame of his

inquiry of changed circumstances (Respondents’ Brief at 9-10),

our review of the record also indicates that respondents have

failed to establish the existence of extraordinary or changed

circumstances, since the time the lead respondent entered the

United States until present. As discussed herein, we find that

the respondents have not established to our satisfaction that

they qualify for an exception to the l-year deadline. See C.F.R.

§ 1208.4(a)(2)(i)(B).

3la

Appendix C

established an exception to the filing deadline to the

satisfaction of the Immigration judge, or to our

satisfaction. See 8 C.F.R. § 1208.4(a)(2)(i)(B). In

addition, we find no support for the respondents’

suggestion that the Immigration Judge ignored

certain testimony and evidence in reaching his

conclusion. See Respondents’ Brief at 12-15. Thus,

their claim that the Immigration Judge violated due

process is without merit.

Accordingly, the respondents’ appeal is

dismissed.

FURTHER ORDER: Pursuant to 8 C.F.R. §

1003.1(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). See

Background and Security Investigations in

Proceedings Before Immigration Judge and the

Board of Immigration Appeals, 70 Fed. Reg. 4743,

4752-54 (Jan. 31, 2005).

FOR THE BOARD

Appendix D

Constitutional, Statutory and Regulatory Provisions

Involved

Suspension of Habeas Corpus Clause of the

Constitution, Art. I, § 9, Cl. 2

The Privilege of the Writ of Habeas Corpus shall not

be suspended, unless when in Cases of Rebellion or

Invasion the public Safety may require it.

* * * *

8 U.S.C. 1158(a)(2)

(2) Exceptions

(A) Safe third country

Paragraph (1) shall not apply to an alien if the

Attorney General determines that the alien may be

removed, pursuant to a bilateral or multilateral

agreement, to a country (other than the country of

the alien's nationality or, in the case of an alien

having no nationality, the country of the alien's last

habitual residence) in which the alien's life or

freedom would not be threatened on account of race,

religion, nationality, membership in a particular

social group, or political opinion, and where the alien

would have access to a full and fair procedure for

determining a claim to asylum or equivalent

temporary protection, unless the Attorney General

finds that it is in tue public interest for the alien to

receive asylum in the United States.

(B) Time limit

33a

Appendix D

Subject to subparagraph (D), paragraph (1) shall not

apply to an alien unless the alien demonstrates by

clear and convincing evidence that the application

has been filed within 1 year after the date of the

alien's arrival in the United States.

Subject to subparagraph (D), paragraph (1) shall not

apply to an alien if the alien has previously applied

for asylum and had such application denied.

(D) Changed circumstances

An application for asylum of an alien may be

considered, notwithstanding subparagraphs (B) and

(C), if the alien demonstrates to the satisfaction of

the Attorney General 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 within

the period specified in subparagraph (B).

* * * *

8 U.S.C. 1158(a)(3)

(3) Limitation on judicial review

No court shall have jurisdiction to review any

determination of the Attorney General under

paragraph (2).

34a

Appendix D

8 U.S.C. 1252(a)(2)(D)

(D) Judicial review of certain legal claims

Nothing in subparagraph (B) or (C), or in any other

provision of this chapter (other than this section)

which limits or eliminates judicial review, shall be

construed as precluding review of constitutional

claims or questions of law raised upon a petition for

review filed with an appropriate court of appeals in

accordance with this section.

o * * .

8 C.F.R. § 208.4(a)(2):

(2) One-year filing deadline.

(i) For purposes of section 208(a)(2)(B) of the Act, an

applicant has the burden of proving:

(A) By clear and convincing evidence that the

application has been filed within | year of the date of

the alien's arrival in the United States, or

(B) To the satisfaction of the asylum officer, the

immigration judge, or the Board that he or she

qualifies for an exception to the l-year deadline.

(ii) The 1-year period shall be calculated from the

date of the alien's last arrival in the United States or

April 1, 1997, whichever is later. When the last day

of the period so computed falls on a Saturday,

Sunday, or legal holiday, the period shall run until

the end of the next day that is not a Saturday,

Sunday, or legal holiday. For the purpose of making

3Sa

Appendix D

determinations under section 208(a)(2)(B) of the Act

only, an application is considered to have been filed

on the date it is received by the Service, pursuant to

§ 103.2(a)(7) of this chapter. In a case in which the

application has not been received by the Service

within 1 year from the applicant's date of entry into

the United States, but the applicant provides clear

and convincing documentary evidence of mailing the

application within the l-year period, the mailing

date shall be considered the filing date. For cases

before the Immigration Court in accordance with §

3.13 of this chapter, the application is considered to

have been filed on the date it is received by the

Immigration Court. For cases before the Board of

Immigration Appeals, the application is considered

to have been filed on the date it is received by the

Board. In the case of an application that appears to

have been filed more than a year after the applicant

arrived in the United States, the asylum officer, the

immigration judge, or the Board will determine

whether the applicant qualifies for an exception to

the deadline.

8 C.F.R. § 208.4(a)(5)

(5) The term "extraordinary circumstances” in

section 208(a)(2)(D) of the Act shall refer to events or

factors directly related to the failure to meet the 1-

year deadline. Such 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. The burden of proof is on

the applicant to establish to the satisfaction of the

asylum officer, the immigration judge, or the Board

36a

Appendix D

of Immigration Appeals that the circumstances were

not intentionally created by the alien through his or

her own action or inaction, that those circumstances

were directly related to the alien's failure to file the

application within the 1-year period, and that the

delay was reasonable under the circumstances.

Those circumstances may include but are not limited

to:

(i) Serious illness or mental or physical disability,

including any effects of persecution or violent harm

suffered in the past, during the 1-year period after

arrival:

(11) Legal disability (e.g., the applicant was an

unaccompanied minor or suffered from a mental

impairment) during the 1-year period after arrival;

(111) Ineffective assistance of counsel, provided that:

(A) The alien files an affidavit setting forth in detail

the agreement that was entered into with counsel

with respect to the actions to be taken and what

representations counsel did or did not make to the

respondent in this regard;

(B) The counsel! whose integrity or competence is

being impugned has been informed of the allegations

leveled against him or her and given an opportunity

to respond; and

filed with appropriate disciplinary authorities with

respect to any violation of counsel's ethical or legal]

responsibilities, and if not, why not;

37a

Appendix D

(iv) The applicant maintained Temporary Protected

Status, lawful immigrant or nonimmigrant status, or

was given parole, until a reasonable period before

the filing of the asylum application;

(v) The 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; and

(vi) The death or serious illness or incapacity of the

applicant's lega] representative or a member of the

applicant's immediate family.

38a

Appendix E

Asylum Manual

Participant Workbook

Lesson Plan Overview

Course

Lesson

Field

Performance

Objective

Interim

(Training)

Performance

Objectives

Student

References /

Materials

Asylum Officer Basic Training

One-Year Filing Deadline

Given an asylum application to

adjudicate in which the one-

year filing deadline or a

previous denial is at issue, the

asylum officer will be able to

properly apply the rules and

reach a decision.

1. Identify whether the one-

year filing rule applies.

2. Correctly use the clear and

convincing evidentiary

standard.

3. Explain the exceptions to

the one-year filing rule.

4. Identify facts material to the

filing rule in evaluating

credibility.

INA §§ 208(a); 101(a)(42); 8

C.F.R. § 208.4(a).

IMMIGRATION OFFICER

ACADEMY ASYLUM OFFICER BASIC TRAINING COURSE

NOVEMBER 30, 2001

ONE -YEAR FILING DEADLINE

39a

Appendix E

Asylum Manual

Participant Workbook

TABLE OF CONTENTS

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Be STE Wilbnieneiininniinnicniicnienmneintanmnexmasin 3

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IV. DETERMINING WHETHER THE

APPLICATION WAS FILED WITHIN THE

Fi eg 3. | Se eee 4

A. Calculating the One-Year Period................ 4

B. Burden and Standard of Proof.................... 5

V. EXCEPTIONS TO THE ONE-YEAR RULE... 7

A. Changed Circumstances. ..........ccccccccseeeeeeeees 7

B. Extraordinary Circumstanceg................... 10

C. Burden and Standard of Proof.................. 15

VI. FILING WITHIN A REASONABLE PERIOD

SI Sar anTU TUTTI icc isacaioaiaieiaiantienhisalatniaaidinladaeltadl 16

Fis I ier 502s Giclocs Phavenes’seasan-deasadeieeoaseaereoees 16

B. Delayed awWaTrene.................cccccereeereeeeeeees 16

C. Evaluation of the “reasonable period of

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ey EET techies antictniicnteumsnccameninntennts 18

eM ats rarer ciatocasescapacadosucranuccunieagecdaees 18

ee ea ine lidai oa eacrencamemenatais 18

L,I TRE TT TT TT 24

IMMIGRATION OFFICER

ACADEMY ASYLUM OFFICER BASIC TRAINING COURSE

NOVEMBER 30, 2001 ONE -YEAR FILING DEADLINE

40a

Appendix E

Asylum Manual

Participant Workbook

(pp. 15-16)

C. Burden and Standard of

Proof

1. Applicant’s burden

The burden of proof is on the

applicant to establish the existence

of a changed circumstance

materially affecting eligibility for

asylum or of an extraordinary

circumstance related to the

applicant’s failure to apply for

asylum within one year from the

last arrival.

2. Standard of proof

The standard of proof to establish

changed or extraordinary

circumstances is proof to the

satisfaction of the Attorney General.

This is a reasonableness test, i.e., it

must be reasonable for the asylum

officer, immigration judge, or BIA to

conclude that a changed or

extraordinary circumstance exists.

This is a lower standard of proof

than the “clear and convincing”

standard that is required to

establish that the applicant timely

filed.

4la

OH #18:

Burden and

Standard of

Proof

INA §

208(a)(2)(D);

See, lesson,

Eligibility Part

IV: Burden of

Proof and

Evidence.

Appendix E

Asylum Manual

3. Evidence

Generally, asylum officers must

consult country conditions

information relevant to the

applicant's claim to determine

whether there are changed country

conditions material to the

applicant’s eligibility for asylum.

While the burden of proof is on the

applicant to show that there are

changed circumstances that now

materially affect his or her

eligibility for asylum, many

applicants affected by changed

circumstances may not be able to

articulate this. The unique nature

of assessing an applicant’s need of

protection places the officer in a

“cooperative” role with the

applicant. It is an asylum officer’s

affirmative duty “to elicit all

relevant and useful information

bearing on the applicant's eligibility

for asylum.”

Asylum officers must be flexible and

inclusive in examining changed or

extraordinary circumstances, if

credible testimony .~ documentary

evidence relating to an exception

exists. Documentary evidence

includes country conditions and

legal information that the asylum

officer researches and uses.

42a

This, of course,

would not apply

to the changed

condition based

on a dependent

reaching 21

years of age.

See, lesson,

Country

Conditions

Research and the

Resource

Information

Center (“RIC”)

UNHCR

Handbook, para.

196; Matter o/ S-

M-J-, 21

I&N Dec. 722

(BIA 1997); 8

C.F.R. § 208.9(b)

Fed. Reg.

comments on

proposed rule,

3/6/97;

comments by

Senators

Hatch and

Abraham shortly

before passage of

IIRIRA

that indicate

legislative

intent for

Appendix E

Asylum Manual

43a

exceptions to

cover a broad

range of

circumstances.

142 Cong.

Rec. $11840,

9/30/96.

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