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No. 07-1363

 

In the Supreme Court of the United States

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 SEVENTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

GREGORY G. GARRE
Acting Solicitor 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.

In the Supreme Court of the United 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 SEVENTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-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. 11a-27a) are unreported.

JURISDICTION

The judgment of the court of appeals was entered on March 3, 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 seq., provides that the Attorney Gen eral-and, now, the Secretary of Homeland Secu rity-may, in his discretion, grant asylum to an alien 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, membership in a parti- cular social group, or political 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)(3)(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. INS 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," that his application for asylum was filed within one year of his entry into the United States. 8 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), has defined the term "changed circumstances" by regulation to include, inter alia, "[c]hanges 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 circumstances "directly related to the fail- ure to meet the 1-year deadline" that "were not inten tionally created by the alien through his or her own ac tion or inaction," including, inter alia, "[s]erious ill- ness or mental or physical disability," "[l]egal disabil ity," and "[i]neffective 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.R. 1208.4(a)(4)(ii) and (5).

c. Under the INA, "[n]o 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 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. 1a. 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. Ibid.1 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. Ibid.

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. Id. at 1a. 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 ment or Punishment (CAT), adopted Dec. 10, 1984, 1465 U.N.T.S. 85. Pet. App. 11a-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 family 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. Id. 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. 11a-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." Id. at 12a.

The IJ 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. Id. 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 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. Id. 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." Id. 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 circum 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. Ibid.; 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 so. 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. Id. 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 government or with government acquiescence. Id. at 24a-25a.

4. The Board of Immigration Appeals (BIA) affirmed and remanded. Pet. App. 28a-32a.2 It noted that peti tioner "conceded that his application was filed beyond the 1-year filing deadline," 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 IJ 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.").3

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 review. Pet. App. 1a-10a. The court first con 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." Id. 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. Id. 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).'" Id. 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 "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." Id. 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." Ibid. 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." Ibid.

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," "[b]ecause 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." Id. at 10a.

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 led 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 was 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 cuits have held that such a claim normally does not raise 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)5; 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); Ignatova 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).6 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 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-specific 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). In the 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 650.7

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 reason 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 "[c]ases 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 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 lacked 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)(1). 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 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, "[i]n 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." Id. 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 143 (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. §[] 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 IJ's order following remand." 519 F.3d at 147 (citing In re Alcantara-Perez, 23 I. & N. Dec. 882 (B.I.A. 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.3.8

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 peti 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. 3a-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.

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 I. & N. Dec. 138, 141-142 (B.I.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 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." Id. 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 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 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 635.9

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 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 INS v. St. Cyr, 533 U.S. 289 (2001), and the St. Cyr Court clearly differenti ated between questions of law and discretionary deci sions. Id. 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. 1158(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 8 U.S.C. 1252(a)(2)(D), and the court of appeals therefore correctly determined that it lacked jurisdiction to con sider it.10

c. 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: "[B]oth 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 case. Id. at 10a.

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." Id. 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." Id. at 6a. The BIA adopted the IJ's decision, including those factual findings. Id. 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, INS v. Elias- 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)(ii) 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 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

1 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).

2 Petitioner did not appeal the IJ's ruling regarding CAT protection, and that claim therefore is not before this Court.

3 The BIA also rejected petitioner's contention that the IJ violated his due process rights in conducting his removal hearing. Pet. App. 31a-32a. The court of appeals also rejected that claim, id. at 10a, and petitioner does not renew it before this Court.

4 The court also determined that petitioners had Article III standing because "there are enough differences between asylum and withholding of removal to yield a live controversy." Pet. App. 5a-6a.

5 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.

6 The First and Fourth Circuits have stated that a challenge to the BIA's conclusion that an asylum application was untimely generally is a fact-specific question that does not raise a "question[] of law." Those statements appear to be dicta, however, because neither case expressly considered a "changed circumstances" or "extraordinary circumstan ces" determination. See Niang v. Gonzales, 492 F.3d 505, 510 n.5 (4th Cir. 2007); Mehilli v. Gonzales, 433 F.3d 86, 93 (1st Cir. 2005).

7 Petitioner cites various cases (Pet. 17-26) addressing whether other types of claims (i.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 cases, 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.

8 In Yusupov v. Attorney General, 518 F.3d 185 (3d 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 "[n]othing in their background checks could affect" their eligibility for relief. 518 F.3d at 196 n.19.

9 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., 8 C.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 1-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., In re Tijam, 22 I. & N. Dec. 408, 416 (B.I.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).

10 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. E.g., United 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 "[p]rovisions foreclosing judicial review of particular administrative decisions are common." Id. 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.