Opposition Brief — Viracachacha v. Mukasey (No. 07-1363)

‘Supene Gro

me Cour, U.S.

FILED !

3 SUL 3 62093

No. 07-1363 OFF.CE OF THE CLERK

eT a,

Jn the Supreme Court of the Anited States

ARMANDO JIMENEZ VIRACACHA, ET AL., PETITIONERS

Vv.

MICHAEL B. MUKASEY, ATTORNEY GENERAL

ON PETITION FORA WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

GREGORY G. GARRE

Acting Solzcitor General

Counsel of Record

GREGORY G. KATSAS

Assistant Attorney General

DONALD E. KEENER

BRYAN S. BEIER

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTIONS PRESENTED

1. Whether a decision of the Board of Immigration

Appeals remanding a case to an immigration judge for

additional proceedings that are prerequisites to the

grant or denial of relief constitutes a “final order of

removal” under 8 U.S.C. 1252(a).

2. Whether the court of appeals correctly held that

it lacked jurisdiction to review the Board of Immigration

Appeals’ conclusion that the lead petitioner failed to

establish “changed circumstances” or “extraordinary

circumstances” to excuse the untimely filing of his

asylum application.

(T)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Alcantara-Perez, In re, 23 1. & N. Dec. 882 (B.I.A.

KS Ga ke ea ea ea ae A ee 14

Almuhtaseb v. Gonzales, 453 F.3d 743 (6th Cir.

| re rrr eee ry Win dan Ure 11,12

Bennett v. Spear, 520 U.S. 154 (1997) ....... cece ce eee 16

Chacon-Botero v. United Siates Att’y Gen., 427 F.3d

et | Ey eee Pane ree enn ea 11

Chen v. United States Dep’t of Justice, 471 F.3d 315

Se Se oa ea a ean ee ee 11,12

Cheng Fan Kwok v. INS, 392 U.S. 206 (1968) .......... 13

Ferry v. Gonzales, 457 F.3d 1117 (10th Cir. 2006) ...... 11

Forney v. Apfel, 524 U.S. 266 (1998) ..............005- 15

Haig ¥. Aget, 458 U.S, TOP CGRE) - ioc eve wc veces asks 19

Higuit v. Gonzales, 433 F.3d 417 (4th Cir.), cert.

GONG, GUE TID, DON ok 6 Ris eNews hin cis denns 18

Ignatova v. Gonzales, 430 F.3d 1209 (8th Cir. 2005) .... 11

INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) .......... 2

INS v. Elias-Zacarias, 502 U.S. 478 (1992) ........... 22

(IIT)

Cases—Continued: Page

INS v. St. Cov, G38 US. ZOO GUO)... 6 ccc cccceess 20

Liu v. INS, 508 F.3d 716 (2d Cir. 2007) ............... 11

M-D.-, In re, 241. & N. Dec. 138 (B.1.A. 2007) ......... 16

Mehilli v. Gonzales, 433 F.3d 86 (1st Cir. 2005) ........ 11

Niang v. Gonzales, 492 F.3d 505 (4th Cir. 2007) ....... 11

Nixon v. Fitzgerald, 457 U.S. 731 (1982) .............. 13

Ramadan v. Gonzales, 479 F.3d 646 (9th Cir. 2007) .... 12

Reno v. American-Arab Anti-Discrimination

Cetens., SI US. SEE CA nc cc ctbeccccdavccses 20

Sandin v. Conner, 514 U.S. 472 (1995) ..........0c000- 19

Sukwanputra v. Gonzales, 434 F.3d 627 (8d Cir.

Pn Kvace yy ieee ee eee eae aoe sx 11,19

Tijam, In re, 22 1. & N. Dec. 408 (B.1.A. 1998) ......... 19

United States v. Nixon, 418 U.S. 683 (1974) ........... 13

United States v. Williams, 504 U.S. 36 (1992) ......... 21

Vakker v. Attorney Gen., 519 F.3d 143 (3d Cir.),

petition for cert. pending, No. 08-5 (filed June 12,

EE ke ene et Recenter ee aes 14,15

Vasile v. Gonzales, 417 F.3d 766 (7th Cir. 2005) ........ 10

Yusupov v. Attorney Gen., 518 F.3d 185 (8d Cir.

I eS nn he oat ghar cee eg te ET Ie Ar a a a she 15

V

Constitution, treaty, statutes and regulations:

U.S. Const.:

Ne ew uecteccseuns 8

Amend. V (Due Process Clause) ................... 19

United Nations Convention Against Torture and

Other Cruel, Inhuman or Degrading Treatment or

Punishment, adopted Dec. 10, 1984, 1465 U.N.T:S.

oc ke nas ee wae secs seve en 4

Immigration and Nationality Act, 8 U.S.C. 1101 et seg. ... 1

Ee 2

Ee 15

SS ee 8

> eS

es 2.3.2

tye, BOUND) ... 226-2000 e ee 2, 9, 17, 19, 22

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re 2

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Ns ce cae cscs ucss 2

Se 13,14

a wwe nw kes ec ene 8,13

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NE | Oh 20

8 U.S.C. 1242(a)(2)(D)

Mmrmeen

- PASSiMN

VI

Statutes and regulations—Continued: Page

en cna ly bss when eda vee 13

eR IEEE vo cece vcecesssesnesesaser 22

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

SNS RS ae: | | 4

II ee 12

a a ga vis 4 wi9.9 4 6-0 \v ene WN NaN ol 15

8 C.F.R.:

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EE 14,15

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a 19

ON EE | 3

ON 3, 22

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epee see w esc esasevscecucsnee 2

ccs vec ev ssscccsceecvacves 2

a Ui oe vnc bv bates sev ¥eeeee 2

Miscellaneous:

Background and Security Investigations in

Proceedings Before Immigration Judges and the

Board of Immigration Appeals, 70 Fed. Reg.

(2005):

ee oes ha ae wx oes shes 88s 13

EE oe eee 14

eM os yh vs eee se eececescsucs 14

H.R. Rep. No. 72, 109th Cong., Ist Sess. (2005) 2.2.2... 20

Jn the Supreme Court of the Gnited States

No. 07-1363

ARMANDO JIMENEZ VIRACACHA, ET AL., PETITIONERS

v.

MICHAEL B. MUKASEY, ATTORNEY GENERAL

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTA CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-10a)

is reported at 518 F.3d 511. The decisions of the Board

of Immigration Appeals (Pet. App. 28a-32a) and the im-

migration judge (Pet. App. 1la-27a) are unreported.

JURISDICTION

The judgment of the court of appeals was entered on

March 8, 2008. The petition for a writ of certiorari was

filed on April 28, 2008. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

STATEMENT

1. a. The Immigration and Nationality Act (INA),

8 U.S.C. 1101 et seg., provides that the Attorney Gen-

eral—and, now, the Secretary of Homeland Secu

rity—may, in his discretion, grant asylum to an alien

(1)

2

who demonstrates that he is a “refugee” within the

meaning of the INA. 8 U.S.C. 1158(b)(1)(A). The INA

defines a “refugee” as an alien who is unwilling or un-

able to return to his country of origin “because of perse-

cution or a well-founded fear of persecution on account

of race, religion, nationality, niembership in a parti-

cular social group, or politicai opinion.” 8 U.S.C.

1101(a)(42)(A). The applicant bears the burden of dem-

onstrating that he is eligible for asylum. 8 U.S.C.

1158(b)(1)(B)(i); 8 C.F.R. 1208.13(a), 1240.8(d).

Withholding of removal is available if the alien dem-

onstrates that his “life or freedom would be threatened”

in the country of removal “because of the alien’s race,

religion, nationality, membership in a particular social

group, or political opinion.” 8 U.S.C. 1231(b)(8)(A). To

satisfy that standard, the alien must prove a “clear prob-

ability of persecution” upon removal, a higher standard

than that required to establish asylum eligibility. JNS

v. Cardoza-Fonseca, 480 U.S. 421, 430-432 (1987). As

with asylum, the applicant bears the burden of establish-

ing that he is eligible for withholding of removal.

8 C.F.R. 1208.16(b), 1240.8(d).

b. An alien who wishes to be granted asylum must

file his application within one year of arriving in the

United States. 8 U.S.C. 1158(a)(2)(B). An alien who

fails to meet that requirement “may be considered” for

asylum if he demonstrates “to the satisfaction of the

Attorney General” or the Secretary of Homeland Secu-

rity either the existence of “changed circumstances”

that materially affect his eligibility for asylum, or “ex-

traordinary circumstances” that excuse his failure to file

the application within the one-year period. 8 U.S.C.

1158(a)(2)(B) and (D). The applicant bears the burden

of demonstrating, “by clear and convincing evidence,”

3

that his application for asylum was filed within one

year of his entry into the United States. & U.S.C.

1158(a)(2)(B); 8 C.F.R. 1208.4(a)(2).

The Attorney General, who is responsible for adjudi-

cating asylum applications filed by aliens in removal

proceedings, 8 U.S.C. 1158(d)(1), kas defined the term

“changed circumstances” by regulation to include, inter

alia, “[cJhanges in conditions in the applicant’s country

of nationality.” 8 C.F.R. 1208.4(a)(4)(i)(A). The Attor-

ney General has defined “extraordinary circumstances”

as personal circumstinces “directly related to the fail-

ure to meet the l-year deadline” that “were not inten-

tionally created by the alien through his or her own ac-

tion or inaction,” including, inter alia, “[slerious ill-

ness or mental or physical disability,” “(legal disabil-

ity,” and “(iJneffective assistance of counsel.” 8 C.F.R.

1208.4(a)(5). In addition to showing “changed circum-

stances” or “extraordinary circumstances,” the applicant

must show that he filed his asylum application within a

reasonable period of time given those circumstances.

8 C.F.LR. 1208.4(a)(4)Gi) and (5).

ec. Under the INA, “[nJo court shall have jurisdiction

to review any determination of the Attorney General”

regarding the timeliness of an asylum application, in-

cluding a determination regarding whether the changed

or extraordinary circumstances exception applies.

8 U.S.C. 1158(a)(3). In 2005, Congress amended one

subsection of the judicial review provision of the INA,

8 U.S.C. 1252(a)(2), to include the following provision:

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

4

review filed with an appropriate court of appeals in

accordance with this section.

8 U.S.C. 1252(a)(2)(D), as added by the REAL ID Act of

2005, Pub. L. No. 109-13, Div. B, § 106(a)(1)(A)(iii), 119

Stat. 310.

2. Petitioners are natives and citizens of Colombia.

Pet. App. la. Lead petitioner Armando Viracacha (peti-

tioner) was admitted to the United States as a non-immi-

grant visitor in December 1998, and his wife and chil-

dren (petitioners Irma Yolanda Jiminez, Eliana Maritza

Jimenez, Maria Paula Jimenez, and Andres Felipe

Jimenez) were admitted as non-immigrant visitors in

December 2000. /bid.' Each of them had permission to

remain in the United States for only six months, and

each remained in the United States beyond that autho-

rized time. /bid.

In September 2002, petitioner filed an asylum appli-

cation. Pet. App. 16a. He claimed that he had been per-

secuted in Colombia by the Revolutionary Armed Forces

of Colombia (FARC) and that he would be persecuted by

the FARC if he returned to Colombia. /d. at la. An

asylum officer determined that petitioner’s asylum ap-

plication was untimely and referred him to an immigra-

tion judge (IJ) for a removal proceeding. A.R. 1112-

1113.

Before the IJ, petitioner conceded removability and

sought asylum, withholding of removal, and protec-

tion under the United Nations Convention Against Tor-

ture and Other Cruel, Inhuman or Degrading Treat-

' This brief generally refers only to the lead petitioner, because

the other petitioners’ claims are entirely derivative of his claims for

relief. See Pet. 8 n.5; Administrative Record (A.R.) 1064-1065; see also

8 U.S.C. 1158(b)(3)(A) and (B).

4)

ment or Punishment (CAT), adopted Dec. 10, 1984, 1465

U.N.T.S. 85. Pet. App. lla-12a. In support of his

claims, petitioner explained that, with an estimated

membership of 17,000 in 2002, FARC was the “largest

and most active” guerilla group in Colombia. A.R. 639,

1063-1072. He alleged that FARC guerillas put a gun to

his head and threatened to kill him and made threaten-

ing telephone calls to his home because of his and his

stepfather’s political activism. Pet. App. 14a, 22a. Peti-

tioner also claimed that the threatening phone calls to

his famiiy continued after he left Colombia in December

1998. Id. at 14a. Petitioner alleged that he planned to

visit the United States for three or four months, but

stayed beyond that time because the peace process insti-

tuted by the then-President of Colombia did not bear

fruit. Jd. at 17a.

The IJ found petitioner removable as charged, de-

nied his claims for asylum and protection under the

CAT, and granted him withholding of removal. Pet.

App. lla-27a. The IJ first determined that each of the

petitioners remained in the United States beyond the

time authorized and that, therefore, they were “all sub-

ject to removal.” /d. at 12a.

The I.J rejected petitioner’s asylum claim as un-

timely. Pet. App. 16a-20a. He noted that petitioner “has

not filed an application for asylum within one year of his

arrival” in the United States, because he arrived in the

United States in December 1998, but he did not file his

application until September 2002, which was nearly four

years later. /d. at 12a, 16a.

The IJ then held that petitioner had failed to demon-

strate either “changed circumstances” or “extraordinary

circumstances” to justify his untimely filing. Pet. App.

16a-20a. The IJ first rejected petitioner’s contention

6

that he showed “changed circumstances”—specifically,

a material change in conditions in Colombia—that justi-

fied his late filing, explaining that there was “no correla-

tion between [petitioner’s] decision to file” his asylum

application and changes in conditions in Colombia. /d.

at 18a. Indeed, the IJ observed, from the time peti-

tioner should have filed his asylum application to the

time he actually did, the civil war in Colombia continued,

“the nature of the conflict did not change,” and the

“same administration remained in power.” Jd. at 19a-

20a.

The IJ then rejected petitioner’s contention that

“extraordinary circumstances” excused his late filing.

Pet. App..18a. The IJ noted that “extraordinary cireum-

stances” generally include significant factors in the appli-

cant’s personal circumstances or experience, such as

mental or physical or legal disability, that would justify

the delay in filing. Jbid.; see 8 C.F.R. 1208.4(a)(5). The

IJ explained that petitioner did not claim any type of

serious disability; he merely stated that “unnamed rep-

resentatives suggested to him that he didn’t have to ap-

ply for asylum” and that he decided only later to do 3o.

Pet. App. 18a. Because that justification “pale[d] signifi-

cantly” when “contrasted with the reasons or examples

given in the regulations,” the IJ concluded that peti-

tioner failed to provide any “extraordinary circum-

stances” to justify his late filing. /d. at 18a-19a.

The IJ then granted petitioner withholding of re-

moval, concluding that petitioner established “a clear

probability of persecution [by the FARC] on account of

political opinion.” Pet. App. 22a. The IJ denied peti-

tioner CAT protection, explaining that his past experi-

ences do not “rise to the level of torture” and that any

past mistreatment was not inflicted by the Colombian

7

government or with government acquiescence. /d. at

24a-25a.

4. The Board of Immigration Appeals (BIA) affirmed

and remanded. Pet. App. 28a-32a.” It noted that peti-

tioner “conceded that his application was filed beyond

the 1-year filing deadiine,” and it “agree[d] with the Im-

migration Judge’s determination that, based on the evi-

dence of record, [petitioners] have failed to establish the

existence of extraordinary or changed circumstances.”

Id. at 29a-30a & n.3. The BIA determined that the I.J

applied the correct legal standard in assessing whether

an exception to the one-year deadline was warranted,

and that its own review of the record “indicate[{d] that

[petitioner] ha[s] failed to establish the existence of ex-

traordinary or changed circumstances, since the time

[petitioner] entered the United States until present.”

Id. at 31a n.5; see ibid. (“[W]e find that [petitioners]

have not established to our satisfaction that they qualify

for an exception to the 1-year deadline.”).*

The BIA then “remanded” the case to the IJ “for the

purpose of allowing the Department of Homeland Secu-

rity the opportunity to complete or update identity, law

enforcement, or security investigations or examinations,

and for further proceedings, if necessary, and for the

entry of an order as provided by 8 C.F.R. § 1003.47(h).”

Pet. App. 32a.

3. The court of appeals dismissed petitioner’s peti-

tion for revicw. Pet. App. la-10a. The court first con-

~ Petitioner did not appeal the IJ’s ruling regarding CAT protection,

and that claim therefore is not before this Court.

’ The BIA also rejected petitioner’s contention that the IJ violated

his due process rights in conducting his removal hearing. Pet. App.

Sla-32a. The court of appeals also rejected that claim, td. at 10a, and

petitioner does not renew it before this Court.

8

sidered whether the BIA had issued a “final order of

removal,” a prerequisite for its jurisdiction under 8

U.S.C. 1252(a)(1). Pet. App. 3a-5a. It acknowledged

that the BIA “remanded to the IJ under 8 C.F.R.

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

ity for withholding of removal,” but it determined that

the BIA’s order was nonetheless “final” because “the

only question within the judicial ken” on appeal “had

been conclusively resolved,” and “[e]verything that re-

mained was a matter of administrative discretion.” Jd.

at 3a-4a. The court next determined that there was

an “order of removal,” because both the IJ and the

BIA found petitioners removable, even though they

did not order removal. /d. at 4a-5a ‘citing 8 U.S.C.

1101(a)(47)(A)).4

The court of appeals then concluded that it lacked

jurisdiction to consider petitioner’s challenge to the

BIA’s conclusion that he failed to establish changed or

extraordinary circumstances to justify his untimely asy-

lum application. Pet. App. 5a-10a. The court explained

that the INA specifically bars judicial review of such

determinations: Although the INA “allows the agency

to accept untimely [asylum] applications under certain

circumstances,” it also states that “‘[n]o court shall have

jurisdiction to review any determination of the [agency]

under paragraph (2).’” /d. at 6a (first and third pairs of

brackets in original) (quoting 8 U.S.C. 1158(a)(3)).

The court. noted that the INA provides an exception

to that bar to judicial review for “constitutional claims

or questions of law,” 8 U.S.C. 1252(a)(2)(D), but it re-

jected petitioner’s contention that his petition raised a

* The court also determined that petitioners had Article II] standing

because “there are enough differences between asvlum and withholding

of removal to vield a live controversy.” Pet. App. 5a-6a.

9

“question{] of law” within the meaning of 8 U.S.C.

1158(a)(2)(D). Pet. App. 6a-9a. The court determined

that “both the Board and the IJ stated with precision

the rules for exceptions to the one-year deadline.” /d. at

6a. And, the court explained, neither of the IJ’s two

conclusions—“that [petitioner] had deliberately re-

frained from making a timely application for asylum,

and that any change in conditions in Colombia since then:

is not material”—raised a “question[] of law,” because

“(t]he first is a conclusion of fact and the second is an

application of law to fact.” Jbid. The court observed

that if petitioner was correct that his challenge to the

agency’s fact-bound conclusion about timeliness raised

a “question{] of law,” then “every error an agency can

make is in the end one of ‘law,’” and the INA’s various

limits on judicial review would be “erased from the stat-

ute books.” Jbid.

In the court’s view, the INA’s exception for “ques-

tions of law” “is limited to ‘pure’ questions of law—situa-

tions in which a case comes out one way if the Constitu-

tion or statute means one thing, and the other way if it

means something different.” Pet. App. 7a. It rejected

petitioner’s contention that 8 U.S.C. 1252(a)(2)(D) “au-

thorizes judicial review of all ‘mixed questions of law and

fact,’ including all applications of law to fact,” “{blecause

no administrative case can be decided without applying

some law to some facts.” Pet. App. 8a. The court thus

concluded that “Section 1252(a)(2)(D) does not restore

jurisdiction when, as in this case, the governing rules of

law are undisputed.” /d. at 10a.

10

ARGUMENT

The court of appeals correctly held that it lacked

jurisdiction to consider whether the Board of Immigra-

tion Appeals erred in concluding that petitioner failed to

establish “extraordinary circumstances” or “changed

circumstances” to justify the late filing of his asylum

application. The question whether the courts of appeals

retain jurisdiction under 8 U.S.C. 1252(a)(2)(D) to re-

view the agency’s decision that an asylum applicant

failed to demonstrate “changed circumstances” or “ex-

traordinary circumstances” to excuse the untimely filing

of his application is a recurring issue that has ied to

some disagreement among the courts of appeals and

may warrant this Court’s review in an appropriate case.

This is not an appropriate case, however, because the

court of appeals lacked jurisdiction on the separate

ground that the BIA’s decision was non-final; because

the court of appeals -vas correct in holding that it lacked

jurisdiction to review petitioner’s challenges to the de-

nial of his request for asylum; and because resolution of

the question regarding the scope of 8 U.S.C.

1252(a)(2)(D) likely will not change the outcome of peti-

tioner’s case. Further review is therefore unwarranted.

1. Petitioner correctly notes (Pet. 13-14) that the

federal courts of appeals have disagreed about whether

they have jurisdiction under 8 U.S.C. 1252(a)(2)(D) to

review the BIA’s determination that an alien failed to

adduce sufficient facts to demonstrate “extraordinary

circumstances” or “changed circumstances” to justify

the untimely filing of an asylum application. In addition

to the Seventh Circuit, see Pet. App. 6a-10a; Vasile v.

Gonzales, 417 F.3d 766, 768-769 (2005), the Second,

Third, Fifth, Sixth, Eighth, Tenth, and Eleventh Cir-

cults have held that such a claim normally does not raise

11

a “question[{] of law” within the meaning of 8 U.S.C.

1252(a)(2)(D). See Zhu v. Gonzales, 493 F.3d 588, 596

n.31 (5th Cir. 2007) (extraordinary circumstances); Chen

v. United States Dep’t of Justice, 471 F.3d 315, 332 (2d

Cir. 2006) (changed or extraordinary circumstances)’;

Ferry v. Gonzales, 457 F.3d 1117, 1130 (10th Cir. 2006)

(changed or extraordinary circumstances); Almuhtaseb

v. Gonzales, 453 F.3d 743, 748 (6th Cir. 2006) (changed

circumstances); Sukwanputra v. Gonzales, 434 F.3d 627,

635 (3d Cir. 2006) (changed or extraordinary circum-

stances); /gnatova v. Gonzales, 430 F.3d 1209, 1214 (8th

Cir. 2005) (extraordinary circumstances); Chacon- Bo-

tero v. United States Att’y Gen., 427 F.3d 954, 957 (11th

Cir. 2005) (changed or extraordinary circumstances).°

Those courts have explained that a challenge to the

BIA’s determination that an alien did not establish

“changed circumstances” or “extraordinary circumstan-

ces” “is merely an objection to the IJ’s factual findings

and the balancing of factors in which discretion was ex-

ercised,” not an argument that raises a “question[] of

° Petitioner suggests (Pet. 15) that the Second Circuit has agreed

with the Ninth Circuit, but that is incorrect. The Second Circuit noted

in Chen that a claim (like petitioner's) that is “essentially a quarrel

about [the IJ’s] fact-finding” with respect to the one-year asylum dead-

line does not raise a “question[] of law,” 471 F.3d at 330, and the Second

Circuit expressly took issue with the Ninth Circuit’s approach in Liu v.

INS, 508 F.3d 716, 721 n.3 (2d Cir. 2007). See also Pet. App. 7a-8a.

* The First and Fourth Circuits have stated that a challenge to the

BIA’s cor ‘usion that an asylum application was untimely generally is

a fact-specific question that does not raise a “question|[] of law.” Those

statements appear to he dicta, however, because neither case expressly

considered a “changed circumstances” or “extraordinary cirecumstan-

ces” determination. See Nrang v. Gonzales, 492 F.3d 505, 510 n.5 (4th

Cir. 2007); Mehilli v. Gonzales, 433 F.3d 86, 93 (1st Cir. 2005).

12

law” under 8 U.S.C. 1252(a)(2)(D). Chen, 471 F.3d at

332.

The Ninth Circuit, in contrast, has held that an

alien’s fact-specifie challenge to the BIA’s determination

that he has not established “changed circumstances” or

“extraordinary circumstances” does raise a “question||

of law” under 8 U.S.C. 1252(a)(2)(D). See Ramadan v.

Gonzales, 479 F.3d 646, 649-656 (9th Cir. 2007) (changed

circumstances). Inthe Ninth Circuit’s view, the term

“questions of law” in 8 U.S.C. 1252(a)(2)(D) “extends to

questions involving the application of statutes or regula-

tions to undisputed facts, sometimes referred to as

mixed questions of fact and law.” Ramadan, 479 F.3d at

650.°

2. That disagreement in the courts of appeals may

warrant this Court’s attention in an appropriate case.

This is not an appropriate case, however, for three rea-

sons.

a. First, this Court lacks jurisdiction to consider peti-

tioner’s claim because the court of appeals lacked juris-

diction to review the BIA’s decision for the separate

reasor that it was non-final. Petitioner has invoked

(Pet. 1) this Court’s jurisdiction under 28 U.S.C. 1254,

which authorizes the Court to review “[clases in” the

courts of appeals. Under Section 1254, this Court has

jurisdiction to review the merits of a case only if the

court of appeals properly had jurisdiction to do so. See

* Petitioner cites various cases (Pet. 17-26) addressing whether other

types of claims (7.e., claims other than challenges to “changed circum-

stances” or “extraordinary circumstances” determinations) raise “ques-

tions of law” within the meaning of 8 U.S.C. 1252(a)(2)(D). Those eases,

however, do not shed light on whether petitioner’s claim raises a “ques.

tion|] of law,” because that inquiry depends on the type of claim at

issue. See, e.g., Almuhtaseb, 453 F.3d at 748 n.3.

13

Nixon v. Fitzgerald, 457 U.S. 731, 742-743 & n.23 (1982);

United States v. Nixon, 418 U.S. 683, 690 (1974). In this

case, the court of appeals Jacked jurisdiction over peti-

tioner’s petition for review, and this Court thus lacks

jurisdiction over the petition for review as well.

The court of appeals’ jurisdiction was invoked under

8 U.S.C. 1252, which authorizes the courts of appeals to

review “final order|s] of removal” by petition for review

so long as the petition for review is filed within 30 days

of the final order of removal. 8 U.S.C. 1252(a)(1), (b)().

Under 8 U.S.C. 1101(a)(47)(B), an order of removal be-

comes final “upon the earlier of—(i) a determination by

the Board of Immigration Appeals affirming such order;

or (ii) the expiration of the period” for appealing to the

Board. As “jurisdictional statute[s],” those provisions

“must be construed both with precision and with fidelity

to the terms by which Congress has expressed its

wishes.” Cheng Fan Kwok v. INS, 392 U.S. 206, 212

(1968).

The BIA’s decision was not a “final order of removal”

because the BIA remanded the case for the completion

of “identity, law enforcement, or security investigations

or examinations, and further proceedings” to establish

petitioner’s eligibility for withholding of removal. Pet.

App. 32a. In 2005, the Attorney General determined

that, in light of national security concerns, an alien

should not be granted relief from removal until the De-

partment of Homeland Security completes an investiga-

tion of the alien’s background, which includes criminal

and intelligence indices checks. See Background and

Security Investigations in Proceedings Before Immi-

gration Judges and the Board of Immigration Appeals,

70 Fed. Reg. 4743-4744 (2005); see 8 C.F.R. 1003.1(d)

(codifying this rule). The Attorney General explained

14

that the background investigation must be completed

“prior to the granting of * * * withholding of re-

moval.” 70 Fed. Reg. at 4746 (emphasis added). More-

over, he stated that, “[iJn any case that is remanded to

the immigration judge pursuant to § 1003.1(d)(6), the

Board’s order will be an order remanding the case and

not a final decision, in order to allow DHS to complete

or update the identity, law enforcement, and security

investigations” and to allow the IJ to “consider the re-

sults of the completed or updated investigations or in-

vestigations before issuing a decision granting or deny-

ing the relief sought.” Jd. at 4748 (emphasis added).

Accordingly, in the event of a remand to the IJ, an

order of removal becomes a final order under 8 U.S.C.

1101(a)(47)(B), and is subject to judicial review under 8

U.S.C. 1252, only following the conclusion of the pro-

ceedings after the remand. The Attorney General’s reg-

ulation, combined with 8 U.S.C. 1101(a)(47)(B), thus

makes clear that a decision of the BIA is not “final” for

purposes of judicial review when it has remanded the

case to the IJ for the completion of background check

investigation as a prerequisite to the granting of relief.

The Third Circuit came to the same conclusion in

Vakker v. Attorney General, 519 F.3d 148 (2008), peti-

tion for cert. pending, No. 08-5 (filed June 12, 2008),

where it determined in analogous circumstances that an

order of the BIA that remanded the case to the IJ was

not a final order of removal. The court of appeals ex-

plained: “Ordinarily, when the BIA remands remov-

al proceedings to the IJ pursuant to 8 C.F.R. 81)

1003.47(h)”—a regulatory companion to 8 C.F.R.

1003.1(d)(6)—“the ‘final order’ in the removal proceed-

ings is the I.J’s order following remand.” 519 F.3d at 147

(citing Jn re Alcantara-Perez, 23 1. & N. Dec. 882 (B.1.A.

15

2006)). And the court noted that “[t]he regulations

themselves are fairly clear in this regard,” pointing to

the statement in 8 C.F.R. 1003.1(d)(6) that the BIA

“shall not issue a decision affirming or granting” relief

prior to the completion of a background investigation.

519 F.3d at 147 n.3."

The court of appeals erred in holding that the BIA’s

order was a “final order of removal.” The court cor-

rectly determined that the BIA had entered an “order of

removal” because it adopted the IJ’s finding that pcti-

tioners were removable. Pet. App. 4a-5a. But it erred

in concluding that the order was “final” in light of the

BIA’s remand of the case to the IJ for additional pro-

ceedings. Instead of turning to 8 U.S.C. 1101(a)(47) and

8 C.F.R. 1003.1(d) to assess the finality of the BIA’s or-

der, the court of appeals looked to Forney v. Apfel, 524

U.S. 266 (1998), and stated that an order is final when

“the original decision on the only question open to judi-

cial review is ‘final.’” Pet. App. 8a-4a. But Forney in-

volved a statute addressing the finality of a district

court decision for purposes of appellate review under 28

U.S.C. 1291, not the finality of an agency decision, and

the Forney Court recognized that an agency decision

remanding a case would provide “less closely analogous

circumstances” and may not be judicially reviewable.

See 524 U.S. at 269, 271-272.

“ In Yusupov v. Attorney General, 518 F.3d 185 (38d Cir. 2008), the

Third Circuit held that a BIA decision that remanded to the IJ for a

background check under 8 C.F.R. 1003.1(d)(6) did constitute a “final

order of removal,” but it explained that, unlike in Vakker, the aliens in

Yusupov had been denied withholding of removal, so that “[nJothing in

their background checks could affect” their eligibility for relief. 518

F.3d at 196 n.19.

16

An agency’s decision is final when it “mark[s] the

consummation of the agency’s decisionmaking process”

and is “one by which rights or obligations have been de-

termined or from which legal consequences will flow.”

Bennett v. Spear, 520 U.S. 154, 177-178 (1997) (internal

quotation marks omitted). The BIA’s decision here did

not mark the end of the agency’s process, and peti-

tioner’s rights were not conclusively determined. As the

BIA has made clear, every proceeding before the IJ on

remand could have some effect on the alien’s eligibility

for relief from removal, because the IJ re-acquires juris-

diction over the entire case, is required to consider the

relevance of any new evidence, and may entertain a mo-

tion to reopen for consideration of a new form of relief.

See In re M-D-, 24 1. & N. Dec. 138, 141-142 (B.1.A.

2007). If the IJ denies withholding relief on remand, the

alien can then appeal that ruling to the BIA (and renew

any other challenges previously rejected by the BIA),

and then seek judicial review in a single petition for re-

view of all issues finally resolved against him by the

BIA. That approach promotes the interests of both ad-

ministrative and judicial efficiency, and therefore rein-

forces the conclusion that the BIA’s remand decision

was not a “final” order. The court of appeals thus should

have determined that the BIA’s order was non-final.

Because the court of appeals lacked jurisdiction over

petitioner’s claim, this Court does as well. At the very

least, the presence of this substantial jurisdictional

question makes this case a poor vehicle to consider the

question petitioners present regarding the scope of 8

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

b. Second, even if the BIA’s order was a “final order

of removal,” the court of appeals correctly determined

17

that it lacked jurisdiction over petitioner’s fact-bound

claim because it does not raise a “question|] of law.”

Under 8 U.S.C. 1158(a)(3), “[n]o court shall have ju-

risdiction to review any determination” regarding an

exception to the one-year filing deadline for asylum

claims, including the determination that a particular

asylum applicant did not “demonstrate[]| to the satisfac-

tion of the Attorney General * * * the existence of

changed circumstances which materially affect the appli-

cant’s eligibility for asylum or extraordinary circum-

stances relating to the delay in filing,” 8 U.S.C.

1158(a)(2)(D). As petitioner acknowledges (Pet. 3-4, 9-

10), his petition for review challenged a determination

that his asylum application was untimely and that he

failed to demonstrate changed circumstances or extraor-

dinary circumstances to justify that untimely filing.

Judicial review of petitioner’s claim is therefore barred

under 8 U.S.C. 1158(a)(3) unless the exception for “ques-

tions of law” in 8 U.S.C. 1252(a)(2)(D) applies.

The court of appeals correctly held that petitioner’s

challenge to the BIA’s fact-bound, discretionary deter-

mination does not raise a “question[] of law.” As the

court of appeals explained, “Section 1252(a)(2)(D) does

not restore jurisdiction when, as in this case, the govern-

ing rules of law are undisputed.” Pet. App. 10a. The

court noted that “both the Board and the IJ stated with

precision the rules for exceptions to the one-year dead-

line.” Jd. at 6a. And it explained that the agency made

two findings—‘“that [petitioner] had deliberately re-

frained from making a timely application for asylum,

and that any change in conditions in Colombia since then

is not material”—neither of which “rests on or reflects

a legal mistake,” because “[t]he first is a conclusion of

18

fact and the second is an application of law to fact.”

Ibid.

The court of appeals correctly rejected the view that

any “applications of law to fact” raise a “question|] of

law,” reasoning that “no administrative case can be de-

cided without applying some law to some facts.” Pet.

App. 8a. If petitioner’s fact-bound challenge to the At-

torney General’s discretionary determination raised a

“question ] of law,” the court explained, then “every er-

ror an agency can make is in the end one of ‘law,’” and

that would “erase[]” 8 U.S.C. 1158(a)(3) and other juris-

dictional limitations “from the statute books.” Pet. App.

6a-7a; see id. at 8a (noting that petitioner’s reading of

Section 1252(a)(2)(D) would “vitiate[] all clauses in the

statute, including § 1158(a)(3), that limit judicial review

of particular classes of decisions”); see also, e.g., Higuit

v. Gonzales, 433 F.3d 417, 420 (4th Cir.) (courts “are not

free to convert every immigration case into a question of

law, and thereby undermine Congress’s decision to

grant limited jurisdiction over matters committed in the

first instance to the sound discretion of the Executive”),

cert. denied, 548 U.S. 906 (2006). Instead, the court ex-

plained, a claim raises a “question|] of law” when “a case

comes out one way if the Constitution or statute means

one thing, and the other way if it means something dif-

ferent.” Pet. App. 7a.

Moreover, regardless of whether an “application of

law to fact” can raise a “question|] of law,” petitioner did

not raise a “question[] of law” because the question

whether he demonstrated “changed circumstances” or

“extraordinary circumstances” to justify an untimely

filing is a question committed to the Attorney General’s

discretion. Such a discretionary determination does not

raise a “question|] of law” within the meaning of 8

19

U.S.C. 1252(a)(2)(D). The text of the INA entrusts

the “extraordinary circumstances” or “changed cir-cum-

stances” determination to the discretion of the Attorney

General: it says that the Attorney General “may” con-

sider an untimely asylum application if the alien demon-

strates changed or extraordinary circumstances “to the

satisfaction of the Attorney General.” 8 U.S.C.

1158(a)(2)(D). Congress’s use of the word “may” “ex-

pressly recognizes substantial discretion.” Haig v.

Agee, 453 U.S. 280, 294 n.26 (1981). And the phrase “to

the satisfaction of the Attorney General” demonstrates

Congress’s expectation that the Attorney General’s as-

sessment “entails an exercise of discretion.”

Sukwanputra, 434 F.3d at 635.”

A challenge to a discretionary determination by the

Attorney General does not raise a “question|]} of law”

under 8 U.S.C. 1252(a)(2)(D). That is precisely the type

of claim over which Congress intended to withhold juris-

’ Contrary to petitioner’s suggestion (Pet. 29 n.14), the issuance of

regulations interpreting 8 U.S.C. 1158(a)(2)(D) does not make a dete-

rmination as to whether an asylum applicant demonstrated “changed

circumstances” or “extraordinary circumstances” non-discretionary.

See, e.g.,8C.F.R. 1208.4(a)(2)i)(B) (alien has burden of proving “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”). Nor

does the INS’s internal training manual for asylum officers, which in

any event is not binding on the BIA or this Court. See, e.g., /n re

Tijam, 22 |. & N. Dec. 408, 416 (B.1.A. 1998). Those materials are in-

tended to guide agency adjudicators in making discretionary determi-

nations that are unreviewable under 8 U.S.C. 1158(a)(3) to avoid wide

disparities in their application; it would be improper to interpret them

as having the quite different effect of enabling judicial challenges to

such decisions notwithstanding the express statutory limitation on such

review. Cf. Sandin v. Conner, 514 U.S. 472, 482-83 (1995) (prison ad-

ministrative regulations should not be construed as creating judicially

enforceable liberty interests under the Due Process Clause).

20

diction under 8 U.S.C. 1252(a)(2)(D). Congress added

the exception for “constitutional claims or questions of

law” in response to concerns this Court raised about

reviewability of removal orders in JNS v. St. Cyr, 538

U.S. 289 (2001), and the St. Cyr Court clearly differenti-

ated between questions of law and discretionary deci-

sions. /d. at 298 (noting that Court was not addressing

a claim of “any right to have an unfavorable exercise of

the Attorney General’s discretion reviewed in a judicial

forum”); id. at 314 n.38 (“[T)his case raises only a pure

question of law as to respondent’s statutory eligibility

for discretionary relief, not * * * an objection to the

manner in which discretion was exercised.”). The legis-

lative history of the REAL ID Act confirms that Con-

gress did not intend to permit review of such determina-

tions. See, e.g., H.R. Rep. No. 72, 109th Cong., 1st Sess.

175 (2005) (Section 1252(a)(2)(D) was intended “to per-

mit judicial review over those issues that were histori-

cally reviewable on habeas,” namely “constitutional and

statutory-construction questions, not discretionary or

factual questions” (emphasis added)). Indeed, reading

“questions of law” to encompass determinations such as

those at issue here would have the opposite effect

of what Congress intended in committing certain deter-

minations to the discretion of the Attorney General.

See, e.g., Reno v. American-Arab Anti-Discrimination

Comm., 525 U.S. 471, 486 (1999) (“protecting the Execu-

tive’s discretion from the courts” could “fairly be said to

be the theme of the legislation” in which Congress added

not only 8 U.S.C. 1252(a)(2)(A)-(C) but also 8 U.S.C.

115&(a)(3)). Because petitioner’s claim is a fact-bound

challenge to a determination that is in any event discre-

tionary, it does not raise a “question[] of law” under &

U.S.C. 1252(a)(2)(D), and the court of appeals therefore

21

correctly determined that it lacked jurisdiction to con-

sider it.’°

ce. Third, even if there were jurisdiction, petitioner

could not show that the agency erred in refusing to con-

sider his untimely asylum application. First, petitioner

has not demonstrated any legal error in the BIA’s con-

clusion. As the court of appeals correctly determined,

the BIA applied the correct legal standard in determin-

ing whether petitioner met his burden of justifying his

untimely filing: “[BJoth the Board and the IJ stated

with precision the rules for exceptions to the one-year

deadline.” Pet. App. 6a. Indeed, the court of appeals

noted, “the governing rules of law are undisputed” in

this ease. Jd. at 10a.

'° Although petitioner included, as one of his questions presented

(Pet. i), “[w]hether the Constitution guarantees review in some court by

some means over petitioner’s claims regarding the asylum filing

exceptions,” he failed to present any argument in support of the claim

that the Constitution requires a judicial forum to consider his challenge

to the BIA’s timeliness determination. That contention is therefore

waived. Moreover, that claim was not pressed or passed on below, and

thus it should not be considered by this Court. F.g., [/nited States v.

Williams, 504 U.S. 36, 41 (1992)

To the extent that petitioner suggests that the phrase “question[] of

law” should be interpreted to permit judicial review of his fact-bound

challenge so as to “avoid any need to consider constitutional objections

to § 1252(a)(2)(D),” the court of appeals correctly rejected that argu-

ment. Pet. App. 8a-9a. As the court of appeals explained, “the Consti-

tution itself allows Congress to create exceptions to the Jurisdiction of

the federal courts,” and “[pJrovisions foreclosing judicial review of

particular administrative decisions are common.” /d. at 8a. Moreover,

as explained above, the court of appeals’ determination that it lacked

jurisdiction here is fully consistent with this Court’s conclusions

in St.Cyr, because this Court made clear that its constitutional concerns

did not extend to the agency's discretionary determinations. See pp.

19-20, supra.

22

Further, petitioner has not shown that the BIA’s

determination that he failed to adduce facts sufficient to

show changed or extraordinary circumstances was un-

supported by substantial evidence. As the IJ explained,

petitioner did not demonstrate, as a factual matter, that

circumstances “changed” in Colombia in any meaningful

way that would justify a late filing. Pet. App. 18a-19a.

And the IJ found that there was “no correlation be-

tween [petitioner’s] decision to file” his application and

his alleged “changed circumstances.” /d. at 18a (empha-

sis added). Moreover, the IJ found that petitioner was

not operating under any legal disability that would con-

stitute “extraordinary circumstances”; instead, “(t]he IJ

found that [petitioner] had deliberately refrained from

making a timely application for asylum.” /d. at 6a. 'The

BIA adopted the IJ’s decision, including those factual

findings. /d. at 29a. If the court of appeals were to con-

sider the timeliness question—and if it could review the

BIA’s factual determinations at all—it would do so un-

der the “substantial evidence” standard, /NS v. Elvas-

Zacarias, 502 U.S. 478, 481 (1992), and the agency’s fac-

tual determinations would be “conclusive unless any

reasonable adjudicator would be compelled to conclude

to the contrary,” 8 U.S.C. 1252(b)(4)(B). On this record,

petitioner could not show that the BIA’s fact-specific

conclusions were not supported by substantial evidence.

Moreover, an untimely asylum application must be

filed within a reasonable period of time in light of the

circumstances justifying the late filing, 8 C.F.R.

1208.4(a)(4)(i1) and (5), which petitioner’s likely was not.

And even if petitioner could establish that his three-year

filing delay was “reasonable,” that would only mean that

the untimely application “may be considered.” 8 U.S.C.

1158(a)(2)(B) and (D) (emphasis added). Thus, there is

23

little prospect that resolution of the question regarding

the scope of 8 U.S.C. 1252(a)(2)(D) would affect the out-

come of this case in any event. Further review is there-

fore unwarranted.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

GREGORY G. GARRE

Acting Solicitor General

GREGORY G. KATSAS

Assistant Attorney General

DONALD E. KEENER

BRYAN S. BEIER

Attorneys

JULY 2008