Liu v. Atty Gen USA , 133 F. App'x 850 ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
6-10-2005
Liu v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-1620
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-1620
QIN HUA LIU,
Petitioner
v.
*ALBERTO GONZALES, Attorney General of the United States;
BOARD OF IMMIGRATION APPEALS; U.S. DEPARTMENT OF JUSTICE,
Respondent
*Substituted pursuant to Rule 43c, F.R.A.P.
On Appeal from an Order entered before
The Board of Immigration Appeals
No. A76-107-913
Submitted Under Third Circuit LAR 34.1(a)
June 9, 2005
Before: AMBRO, VAN ANTWERPEN and TASHIMA**, Circuit Judges
(Opinion filed June 10, 2005)
OPINION
** Honorable A. Wallace Tashima, Senior United States Circuit Judge for the
Ninth Circuit Court of Appeals, sitting by designation.
AMBRO, Circuit Judge
Qin Hua Liu petitions for review of the decision of the Board of Immigration
Appeals (“BIA”) denying her asylum claim as untimely. For the reasons set forth below,
we deny the petition.
I. Factual and Procedural History
Because we write solely for the parties, we note only those facts relevant to our
decision. Liu is a native and citizen of the People’s Republic of China. She alleges that
she fled China on July 25, 1998, and arrived in the United States on August 1, 1998. She
was issued a Notice to Appear stating, inter alia, that her date and place of entry into the
United States were unknown.
The Immigration Judge (“IJ”) found that Liu’s asylum application, which was filed
on January 29, 1999, was timely.1 The IJ granted Liu asylum and withholding of
removal. The Department of Homeland Security (“DHS”) appealed the grant of asylum,
arguing that Liu had not met her burden of establishing that she had filed her asylum
application within one year of her arrival in the United States.2 The BIA sustained the
appeal. It determined, inter alia, that (1) the documentary evidence Liu submitted was
questionable and (2) there were “numerous inconsistencies” in the information provided
1
An alien must demonstrate by clear and convincing evidence that his or her asylum
application was filed “within 1 year after the date of the alien’s arrival in the United
States.” 8 U.S.C. § 1158(a)(2)(B).
2
DHS did not appeal the grant of withholding of removal.
2
by Liu’s cousin about Liu’s date of entry. The BIA also noted that Liu had attempted to
provide information about her date of entry “on three occasions which was questionable
at best and clearly not clear and convincing as tacitly admitted by the [IJ].” (BIA Dec. at
3). Liu now petitions for review of that decision.
II. Analysis
As Liu concedes, we do not have jurisdiction to review the BIA’s determination
that her asylum application was untimely. Tarrawally v. Ashcroft, 338 F.3d 180, 185 (3d
Cir. 2003) (holding that “the language of 8 U.S.C. § 1158(a)(3) clearly deprives us of
jurisdiction to review an IJ’s determination that an asylum petition was not filed within
the one year limitations period”). However, Liu argues that she is challenging not the
BIA’s factual determination but rather the procedure by which that determination was
reached. According to Liu, that procedure violated her due process rights.
As a general matter, “[d]ue process protections are afforded to aliens facing
removal.” Ezeagwuna v. Ashcroft, 325 F.3d 396, 405 (3d Cir. 2003). Pursuant to this
principle, we retain jurisdiction to review due process claims made by aliens even when
we do not have jurisdiction to review the underlying decision made by the BIA. See
Gjyzi v. Ashcroft, 386 F.3d 710, 714 (6th Cir. 2005) (acknowledging lack of jurisdiction
to review BIA’s determination regarding timeliness of an asylum application but
exercising jurisdiction over alien’s due process challenge to the process by which that
determination was reached); see also Torres-Aguilar v. INS, 246 F.3d 1267, 1271 (9th
3
Cir. 2001) (holding that the court retained jurisdiction over a colorable claim of a due
process violation by an alien even when it did not have jurisdiction to review the
underlying discretionary decision of the Attorney General). In this context, our review of
Liu’s due process claim is de novo. Ezeagwuna, 325 F.3d at 405.
Liu argues that her procedural due process rights were violated because “the BIA
[did] not specify what evidence would be required for petitioner to meet her burden, nor
[was] petitioner given the opportunity to testify about why certain evidence was not
presented to establish the time and place she entered the United States.” (Pet’r Br. at 8).
This argument essentially recasts a challenge to the merits of the BIA’s decision on
whether Liu met her burden of showing that her application was timely into a due process
claim. As the BIA noted, Liu was allowed to submit evidence to the IJ in support of her
claim that she arrived in the United States on August 1, 1998, on three occasions. Liu
provided the IJ with both documentary evidence and testimony from a family member.
The timeliness of Liu’s asylum application was also fully briefed before the BIA, and the
BIA issued a detailed decision stating what it viewed as the problems with Liu’s case.
These facts demonstrate that Liu received a full and fair hearing. It is not our role
to re-weigh the evidence and, as stated above, we do not have jurisdiction to review the
BIA’s underlying decision on timeliness. On this record, Liu cannot prevail on her due
process claims. Cf. Torres-Aguilar, 246 F.3d at 1271 (holding that alien had not alleged a
colorable due process claim when he did “not contend that he was prevented from
4
presenting his case before the [IJ] or the BIA, denied a full and fair hearing before an
impartial adjudicator or otherwise denied a basic due process right”).
III. Conclusion
Thus, we deny Liu’s petition for review.3
3
The Government’s motion to dismiss for lack of jurisdiction is denied as moot.
5