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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2008

## Text

» | 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.

il

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

Vi

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 ]
rs eI tcc rtccisscaicsscreerseaneaceiaarilouen 1,4
BS UBC. LRG IID) oncsicscccsccccccccscsccoscesscossacvsdecesuens 2
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

1X

Se IID occ niestinsdacianmiaeyskaadacivubecounanneondanll 6

UFC, ROBIN onesies ce csevessvessceccsiccionscserececuecooses 6
8 U.S.C. 1253(h)........... eR na eT Me -
© UT.G.C. BOG) oven cccascsscesssvcucssesecersverersensassvseseeeet s
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,

~]
bo
pend
bo
to
<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

XI

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’).

te

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

7

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.

10

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)

1]

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

13

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).

14

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

15

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.

16

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).

18

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

19

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)).

(c) Only the Sixth and Tenth Circuits have
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.

21

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.

22

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

24

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).

26

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 ).

28

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

29

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)

30

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

3}

APPEN SIX

Appendix A

In the
United States Court of Appeals
For the Seventh Circuit

No. 07-1548
ARAMANDO JIMENEZ VIRACACHA, et ail.,
Petitioners,
U.
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

la

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

2a

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

*

3a

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

4a

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

Sa

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

6a

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

7a

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

8a

re

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.

9a

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 134 973
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).

ee

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.

(C) Previous asylum applications

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

(C) The alien indicates whether a complaint has been
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
1

39a

Appendix E
Asylum Manual

Participant Workbook

TABLE OF CONTENTS
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Be STE Wilbnieneiininniinnicniicnienmneintanmnexmasin 3
Eg fe | Es g an eer ETT 4

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

TN i. cic bak dass brutisdh aiihaaonedunsbeeameceacaunbmine 16

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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
2

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1415%3A1. Public record. Not legal advice.