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No. 08-1317

 

In the Supreme Court of the United States

GILBERT EMAN, PETITIONER

v.

ERIC H. HOLDER, JR., ATTORNEY GENERAL

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

ELENA KAGAN
Solicitor General
Counsel of Record
TONY WEST
Assistant Attorney General
DONALD E. KEENER
ROBERT N. MARKLE
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTIONS PRESENTED

1. Whether the court of appeals correctly held that it lacked jurisdiction to review the Board of Immigration Appeals' conclusion that petitioner failed to establish "changed circumstances" to excuse the untimely filing of his asylum application.

2. Whether the court of appeals erred in holding that substantial evidence supported the agency's deter mination that petitioner failed to establish eligibility for asylum.

In the Supreme Court of the United States

No. 08-1317

GILBERT EMAN, PETITIONER

v.

ERIC H. HOLDER, JR., ATTORNEY GENERAL

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

 

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-2a) is not published in the Federal Reporter but is reprinted in 288 Fed. Appx. 125. The decisions of the Board of Immigration Appeals (Pet. Supp. App. 9a-11a) and the immigration judge (Pet. Supp. App. 12a-20a) are unre ported.

JURISDICTION

The judgment of the court of appeals was entered on August 12, 2008. A petition for rehearing was denied on January 20, 2009. The petition for a writ of certiorari was filed on April 17, 2009. This Court's jurisdiction is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. a. The Immigration and Nationality Act (INA) provides that the Secretary of Homeland Security and the Attorney General may, in their discretion, grant asy lum 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 unable to return to his country of origin "because of persecution or a well-founded fear of persecution on ac count of race, religion, nationality, membership in a par ticular 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). Once an alien has established asylum eligibility, the decision whether to grant or deny asylum is left to the discretion of the Attorney General or the Secretary of Homeland Security. 8 U.S.C. 1158(b)(1).

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)(A).

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 failure to meet the 1-year deadline" that "were not intentionally created by the alien through his or her own action or inaction," including, inter alia, "[s]erious illness or men tal or physical disability," "[l]egal disability," and "[i]n effective assistance of counsel." 8 C.F.R. 1208.4(a)(5). In addition to showing "changed circumstances" or "ex traordinary 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. a. Petitioner is a native and citizen of Indonesia. Pet. App. 2a. He was admitted to the United States on a student visa, but he failed to maintain the conditions of his student status. Pet. Supp. App. 12a; Administrative Record (A.R.) 623-624. United States Immigration and Customs Enforcement therefore charged him with being removable as an alien who, after being admitted as a nonimmigrant, failed to maintain the conditions of his nonimmigrant status. A.R. 623-624; see 8 U.S.C. 1227(a)(1)(C)(i).

Petitioner conceded that he is removable as charged, and an immigration judge (IJ) found that he is remov able. Pet. Supp. App. 12a. Petitioner sought asylum, withholding of removal, and protection under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), Dec. 10, 1984, S. Treaty Doc. No. 20, 100th Cong. 2d Sess. (1988), 1465 U.N.T.S. 85. Pet. Supp. App. 13a; A.R. 446-456.

The IJ held a hearing, at which petitioner was the sole witness. Pet. Supp. App. 13a; A.R. 131-183. Peti tioner claimed that he feared persecution in Indonesia because he is a Christian. Pet. Supp. App. 13a. He re counted one occasion when he was in Indonesia in which strangers asked to see his identification and he ran away from them. A.R. 169-170. Petitioner acknowledged that, other than that one occasion, he had never had any prob lems in Indonesia based on his religion. A.R. 108-109. He also explained that his parents and sister, who are also Christian, remain in Indonesia, where they attend weekly religious services. A.R. 142-143. Petitioner ac knowledged that Indonesian law protects all people against religious discrimination, but he stated that he believes Muslims, who are in the majority, receive pref erential treatment. Pet. Supp. App. 14a; A.R. 62.

Petitioner also testified about his delay in filing the asylum application. Although he was last admitted to the United States in December 2000, he did not file his asylum application until October 2003. Pet. Supp. App. 12a-13a. Petitioner stated that he waited to file his ap plication until that time because he did not become aware that he could apply for asylum until after he was first placed in removal proceedings. Id. at 15a; A.R. 149. He also stated that the series of bombings from 2000 to 2003-church bombings on Christmas Eve 2000, the bombing of a Bali nightclub in October 2002, and the bombing of a Marriott hotel in Jakarta in August 2003-constituted changed circumstances that excused his untimely filing. Pet. Supp. App. 14a-15a, 18a; A.R. 150-151.1

b. The IJ denied petitioner's applications for asy lum, withholding of removal, and CAT protection. Pet. Supp. App. 12a-20a. First, the IJ determined that peti tioner's asylum application was not filed within one year of his entry into the United States and that he had failed to demonstrate material changed circumstances that excused the untimely filing. Id. at 18a. The IJ ex plained that petitioner "clearly did not file within the one year time limit," and that the bombings from 2000-2003 did not constitute "changed circumstances" that materially affected his asylum application. Ibid. The IJ explained that the Board of Immigration Appeals (Board) had rejected just such a changed circumstances argument in In re A-M-, 23 I. & N. Dec. 737 (B.I.A. 2005). Pet. Supp. App. 18a. The IJ also determined that, even if the bombings did constitute material changed circumstances in Indonesia, petitioner "did not file his asylum application within a reasonable time after he became aware of those incidents," because the bomb ings happened "over a year in advance of him filing his asylum application." Ibid.

The IJ then held, in the alternative, that petitioner failed to satisfy his burden of proving that he has a well- founded fear of future persecution on the basis of his religion. Pet. Supp. App. 18a-19a. The IJ found that petitioner was credible, id. at 17a, but also determined that "there is simply not enough evidence in [peti tioner's] testimony or the record to demonstrate that there is in fact a pattern or practice of persecuting Christians in Indonesia," id. at 19a. Citing In re A-M-, the IJ observed that the existence of some "civil unrest and sectarian conflict" in Indonesia did not rise to the level of a systematic and pervasive pattern of persecu tion sufficient to demonstrate a well-founded fear of reli gious persecution. Ibid.

Finally, the IJ denied petitioner's claims for with holding of removal and CAT protection and granted him voluntary departure, stating that he was required to depart the United States by June 5, 2006. Pet. Supp. App. 19a-20a.2

3. The Board dismissed petitioner's appeal. Pet. App. 9a-11a. As relevant here, the Board "agree[d] with the Immigration Judge that [petitioner's] asylum appli cation is time-barred." Id. at 9a. The Board explained that the "application was untimely filed," and petitioner "did not meet his burden of showing he qualified for an exception to the filing deadline." Id. at 9a-10a. And the Board noted that petitioner's arguments "are similar to those that [the Board] considered and rejected" in In re A-M-. Id. at 9a. The Board also determined that peti tioner's claim for asylum failed on the merits, because he had not met his burden of "establish[ing] past persecu tion or a well-founded fear of persecution on account of a [protected] ground." Id. at 10a. The Board then stat ed that petitioner was required to voluntarily depart the United States within 60 days. Ibid.3

4. The court of appeals dismissed in part and denied in part petitioner's petition for review in an unpublished, non-precedential opinion. Pet. App. 1a-2a. First, the court held that it lacked jurisdiction under 8 U.S.C. 1158(a)(3) and 1252(a)(2)(D) to review the Board's deter mination that no changed circumstances excused peti tioner's late filing of his asylum application. Id. at 2a.

In the alternative, the court of appeals rejected pe titioner's asylum claim on the merits. Pet. App. 2a. It noted that, to obtain reversal, petitioner "must show that the evidence he presented was so compelling that no reasonable factfinder could fail to find the requi site fear of persecution." Ibid. (quoting INS v. Elias- Zacarias, 502 U.S. 478, 483-484 (1992)); see 8 U.S.C. 1252(b)(4)(B) (administrative findings of fact conclusive unless a reasonable adjudicator would be compelled to conclude to contrary). The court stated that it "re viewed the record and conclude[d] that [petitioner] fail[ed] to show that the evidence compels a contrary result." Pet. App. 2a.

ARGUMENT

1. Petitioner contends (Pet. 6-9) that the court of appeals erred in holding that it lacked jurisdiction to review the Board's conclusion that he failed to demon strate material changed circumstances that would ex cuse the late filing of his asylum application. The ques tion whether the courts of appeals retain jurisdiction under 8 U.S.C. 1252(a)(2)(D) to review the agency's deci sion that an asylum applicant failed to demonstrate "changed circumstances" or "extraordinary circum stances" 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 ap propriate case, however, because the court of appeals' opinion is unpublished and thus did not create circuit precedent; because the court of appeals was correct in holding that it lacked jurisdiction to review petitioner's challenge to the denial of his request for asylum; and because resolution of the question regarding the scope of 8 U.S.C. 1252(a)(2)(D) likely would not change the outcome of petitioner's case.

a. The federal courts of appeals have disagreed about whether they have jurisdiction under 8 U.S.C. 1252(a)(2)(D) to review the Board's determination that an alien failed to adduce sufficient facts to demonstrate "extraordinary circumstances" or "changed circum stances" to justify the untimely filing of an asylum appli cation. The First, Second, Third, Fifth, Sixth, Seventh, Eighth, Tenth, and Eleventh Circuits 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, e.g., Usman v. Holder, 566 F.3d 262, 267 (1st Cir. 2009) (extraordinary or changed circumstances); Viracacha v. Mukasey, 518 F.3d 511, 514-516 (7th Cir.) (changed or extraordinary circumstances), cert. denied, 129 S. Ct. 451 (2008); 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); Ignatova v. Gonzales, 430 F.3d 1209, 1214 (8th Cir. 2005) (extraordinary circumstances); Chacon- Botero v. United States Att'y Gen., 427 F.3d 954, 957 (11th Cir. 2005) (extraordinary circumstances). Those courts have explained that a challenge to the Board's determination that an alien did not establish "changed circumstances" or "extraordinary circumstances" "is merely an objection to the IJ's factual findings and the balancing of factors in which discretion was exercised," 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 ali en's challenge to the Board's determination that he has not established "changed circumstances" or "extraordi nary circumstances" did raise a "question[] of law" un der 8 U.S.C. 1252(a)(2)(D). See Ramadan v. Gonzales, 479 F.3d 646, 649-656 (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 regulations to undisputed facts, sometimes referred to as mixed questions of fact and law." Ramadan, 479 F.3d at 650.

b. 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 four rea sons.

First, the decision below is unpublished and does not create circuit precedent. See Pet. App. 1a. It therefore does not itself give rise or contribute to the type of dis agreement in published opinions that warrants this Court's review. Moreover, the court did not address whether petitioner's claim raises a "question[] of law" in any detail. Rather than discuss the circumstances in which an issue involving a late-filed asylum application might raise a "question[] of law" allowing the exercise of jurisdiction, the court simply stated that it "lack[ed] jurisdiction to review this determination pursuant to 8 U.S.C. § 1158(a)(3) (2006), even in light of the passage of the REAL ID Act of 2005." Pet. App. 2a. To the best of the government's knowledge, the Fourth Circuit has not addressed the question presented here in any pub lished decision.4

Second, 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 juris diction to review any determination" regarding an ex ception to the one-year filing deadline for asylum claims, including the determination that a particular asylum applicant has not "demonstrate[d] to the satisfaction of the Attorney General * * * the existence of changed circumstances which materially affect the applicant's eligibility for asylum or extraordinary circumstances relating to the delay in filing," 8 U.S.C. 1158(a)(2)(D). As petitioner acknowledges (Pet. 6-7), his petition for review challenged a determination that his asylum appli cation was untimely and that he had failed to demon strate changed 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 "questions of law" in 8 U.S.C. 1252(a)(2)(D) applies.

The court of appeals correctly held that petitioner's challenge to the Board's fact-bound, discretionary deter mination did not raise a "question[] of law." In this case, the governing rules of law are undisputed; the Board rejected petitioner's changed circumstances argument because it found that petitioner failed to demonstrate, on the particular facts of his case, that there had been a change in conditions in Indonesia that was material to his asylum application. Pet. Supp. App. 9a-10a. That determination is not a legal determination, but a factual determination. If petitioner's fact-bound challenge to the Attorney General's discretionary determination raised a "question[] of law," then any error any agency could make might be a question of law, thereby render ing the jurisdictional bar in 8 U.S.C. 1158(a)(3) meaning less. See, 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 Con gress's decision to grant limited jurisdiction over mat ters committed in the first instance to the sound discre tion of the Executive"), cert. denied, 548 U.S. 906 (2006).

Moreover, the question whether petitioner demon strated "changed circumstances" to justify an untimely filing is a question committed to the Attorney General's discretion, and 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 states that the Attorney General "may" consider an untimely asy lum application if the alien demonstrates 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" "expressly recognizes substantial discretion," Haig v. Agee, 453 U.S. 280, 294 n.26 (1981), and the phrase "to the satisfaction of the Attorney Gen eral" demonstrates Congress's expectation that the At torney General's assessment "entails an exercise of dis cretion," Sukwanputra, 434 F.3d at 635. Cf. Webster v. Doe, 486 U.S. 592, 600 (1988). A challenge to a discre tionary determination by the Attorney General is pre cisely the type of claim over which Congress intended to withhold jurisdiction under 8 U.S.C. 1252(a)(2)(D). See, e.g., H.R. Rep. No. 72, 109th Cong., 1st Sess. 175 (2005) (Section 1252(a)(2)(D) was intended "to permit judicial review over those issues that were historically review able on habeas," namely "constitutional and statutory- construction questions, not discretionary or factual questions" (emphasis added)). Because petitioner's claim is a fact-bound challenge to a determination that is in any event discretionary, it does not raise a "ques tion[] of law" under 8 U.S.C. 1252(a)(2)(D), and the court of appeals therefore correctly determined that it lacked jurisdiction to consider it.

Third, even if there were jurisdiction, petitioner could not show that the agency erred in refusing to con sider his untimely asylum application. If the court of appeals were to consider the timeliness question, it would do so under the "substantial evidence" standard, INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992), and the agency's factual determinations would be "conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary," 8 U.S.C. 1252(b)(4)(B). Petitioner has not shown that the Board's determination that he failed to adduce facts sufficient to show changed circumstances was unsupported by substantial evidence. As the Board explained in In re A-M-, 23 I. & N. Dec. 737, 738 (B.I.A. 2005), which was cited by the Board be low (Pet. Supp. App. 9a), the nightclub bombing in Bali in 2002 did not automatically qualify as a "changed cir cumstance" for any Indonesian native. Although that event was "undoubtedly a tragic event for nearly all In donesians," an alien seeking to avoid the one-year asy lum filing deadline must demonstrate how the bombing "materially affected or advanced his asylum claim." 23 I. & N. Dec. at 738 (citing 8 C.F.R. 1208.4(a)(4)(i)). Peti tioner has not made such a showing.

Moreover, even if the bombings constituted changed circumstances, the IJ found that petitioner had not filed his application within a reasonable period of time in light of those circumstances. Pet. Supp. App. 18a. The Board affirmed that finding, id. at 10a, and petitioner did not challenge that finding before the court of appeals. For this reason alone, petitioner cannot demonstrate that he merits an exception to the one-year asylum filing dead line.

Finally, petitioner's asylum claim fails on the merits. As explained below, the Board determined that peti tioner failed to show a well-founded fear of persecution in Indonesia based on his religion, and the court of ap peals determined that substantial evidence supported that holding. Because there is no reasonable prospect that petitioner could prevail on the merits of his claim, this case would provide a poor vehicle to review the ju risdictional question.

2. Petitioner also contends (Pet. 9-12) that the court of appeals erred in holding that substantial evidence supports the Board's finding that he had not met his burden of proof for asylum. There is no disagreement in the circuits on that issue. Instead, petitioner merely challenges the court of appeals' application of the famil iar substantial evidence standard to the facts of his par ticular case.

Under the substantial evidence standard, petitioner must show that the evidence in the record compels the conclusion that he is eligible for asylum, Elias-Zacarias, 502 U.S. at 483-484; see 8 U.S.C. 1252(b)(4)(B) ("admin istrative findings of fact are conclusive unless any rea sonable adjudicator would be compelled to conclude to the contrary"). Petitioner did not testify about any in stances in which he or his family members in Indonesia actually were harmed based on their religion, and it is well-established that mere harassment does not rise to the level of persecution. A.R. 108-109, 169-170 (peti tioner's testimony that he had only feared harassment based on his religion on one occasion, when a stranger asked him for identification); see In re A-M-, 23 I. & N. Dec. at 740. Moreover, petitioner did not demonstrate that there is systematic, pervasive persecution in Indo nesia of Christians by individuals or groups the govern ment is unwilling or unable to control. A.R. 65 (peti tioner's acknowledgment that the Indonesian govern ment protects against religious discrimination); see, e.g., In re A-M-, 23 I. & N. Dec. at 741; see also, e.g., Lie v. Ashcroft, 396 F.3d 530, 537 (3d Cir. 2005) (harm must be inflicted by person or persons that the government is unwilling or unable to control to constitute persecution under the asylum laws). The court of appeals' straight forward application of the substantial evidence standard to the facts of petitioner's case does not warrant this Court's review.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELENA KAGAN
Solicitor General
TONY WEST
Assistant Attorney General
DONALD E. KEENER
ROBERT N. MARKLE
Attorneys

JUNE 2009

1 Petitioner did not argue that there are any extraordinary circum stances that excuse the untimely filing of his asylum application.

2 Petitioner did not appeal the denial of CAT protection. Pet. Supp. App. 10a. The Board and the court of appeals rejected petitioner's claim for withholding of removal, Pet. App. 1a-2a; Pet. Supp. App. 10a, and petitioner does not renew that claim before this Court.

3 Although petitioner sought and obtained a stay of removal pending consideration of his petition for review, he never sought a stay of his period of voluntary departure. To the best of the government's know ledge, petitioner did not depart within the time permitted and has re mained in the United States illegally.

4 In Niang v. Gonzales, 492 F.3d 505 (4th Cir. 2007), the court of ap peals stated that it would lack jurisdiction to review a challenge to the agency's decision that an asylum application was untimely under 8 U.S.C. 1158(a)(3). Id. at 510 n.5. But that statement was dictum, be cause the court found that the alien had waived any such challenge. Ibid. Moreover, the court did not address the question whether a chal lenge to the Board's determination that an alien has not established "changed circumstances" or "extraordinary circumstances" would raise a "question[] of law" under 8 U.S.C. 1252(a)(2)(D); indeed, the court did not mention 8 U.S.C. 1252(a)(2)(D) at all. Ibid. And the decision below did not rely on Niang. Pet. App. 2a.