Bejet-Viali Al-Jojo v. John Ashcroft ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-2301
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Tarek Bejet-Viali Al-Jojo *
*
Petitioner, *
*
v. * Petition for Review
* of an Order of the
Alberto Gonzales, Attorney General * Board of Immigration Appeals
of the United States; Tom Ridge, *
Secretary of Homeland Security, *
*
Respondents. *
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Submitted: June 22, 2005
Filed: September 27, 2005
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Before ARNOLD, McMILLIAN and COLLOTON, Circuit Judges.
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McMILLIAN, Circuit Judge.
Tarek Bejet-Viali Al-Jojo (petitioner) petitions for review of an order of the
Board of Immigration Appeals (BIA) denying his application for asylum, withholding
of removal, or protection under the United Nations Convention Against Torture
(CAT). In re Tarek Bejet-Viali Al-Jojo, No. A70-183-303 (B.I.A. Apr. 28, 2004) (per
curiam) (hereinafter “BIA Order”) (affirming and adopting decision of the
immigration judge (IJ), id. (Oct. 22, 2002) (hereinafter “IJ Decision”)). In support of
his petition, petitioner argues that the BIA erred in: (1) holding that the delay in his
filing for asylum was not justified by exceptional circumstances and (2) ordering his
removal to Great Britain or, alternatively, Sierra Leone. For the reasons stated below,
we deny the petition for review.
Background
The following is a summary of the background facts as found by the IJ. See
IJ Decision at 1-3. Petitioner, a native of Sierra Leone, first entered the United States
with his mother, sister, and brother in 1992. They entered through Mexico without
inspection and, at the time, did not have valid entry documents. On or about July 16,
1992, petitioner’s mother filed a request for asylum. Her request was not granted, and
she was referred to the Immigration Court with an order to show cause. Petitioner,
a minor, was considered a derivative asylum claimant under his mother’s request. A
hearing on the asylum claims was scheduled in the Immigration Court. Before the
appointed time, however, petitioner departed the United States. He was admitted into
the United Kingdom on or about August 4, 1994, with a British overseas passport.
On April 10, 1995, the Immigration Court denied petitioner’s derivative asylum
claim in absentia. The Immigration Court ordered petitioner deported to Lebanon,
the country listed as petitioner’s place of citizenship on the show cause order
previously issued to his mother.
Petitioner re-entered the United States on or about August 10, 1998. He was
admitted into this country upon presenting his British overseas passport. The
Immigration and Naturalization Service (INS)1 mistakenly believed he could enter the
United States under the Visa Waiver Pilot Program.
1
The Immigration and Naturalization Service subsequently became the
Department of Homeland Security.
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On September 18, 2001, INS began removal proceedings against petitioner.
Petitioner was charged with removability under 8 U.S.C. § 1227(a)(1)(A), (a)(1)(C)(i)
and was ordered to appear before the IJ in Kansas City, Missouri.
Removal hearings were held before the IJ on January 22, 2002, and
February 19, 2002. At the hearings, petitioner admitted the allegations of fact
contained in the Notice to Appear, but denied that he was a citizen of Lebanon,
denied being a citizen of Sierra Leone (his birth place), and denied being a citizen of
Great Britain (where his deceased father had been a citizen). He explained that his
family had been issued British overseas passports by the British Embassy in Sierra
Leone because Sierra Leone was a British colony at the time. He also admitted
working in the United States without authorization and entering the United States
from Canada in August 1998 without valid entry documents or a nonimmigrant visa.
Upon consideration of the evidence presented, including petitioner’s testimony,
the IJ concluded that the government had established removability by “clear,
convincing, and unequivocal” evidence. The IJ found petitioner deportable because
he was not in possession of a valid nonimmigrant visa and was not entitled to
admission under the Visa Waiver Pilot Program when he entered the United States
in 1998. Secondly, the IJ found petitioner deportable for having worked in the United
States without authorization. IJ Decision at 4.
The IJ next considered petitioner’s application for asylum, withholding of
removal, or protection under the CAT. The IJ noted that petitioner’s application for
asylum had been filed more than one year after his entry into the United States in
1998 and therefore was untimely. However, the IJ observed, the delay in filing of
petitioner’s asylum request could be excused if there were changed circumstances
materially affecting petitioner’s eligibility for asylum or extraordinary circumstances
relating to the delay in filing the application.
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The IJ initially concluded that, due to changed circumstances, the 1995 in
absentia denial of petitioner’s derivative asylum request as a minor did not bar his
current request; however, it also did not excuse his delay in filing.
The IJ next turned to petitioner’s argument that the delay in filing should be
excused because of the likelihood he would be persecuted if deported to Sierra Leone.
Petitioner maintained that, because of his mother’s past role as a housekeeper for a
former President of Sierra Leone, he was persecuted in Sierra Leone in 1992 and
would likely be persecuted if returned there. The IJ concluded that petitioner “ha[d]
not shown changed circumstances that materially affect[ed] his eligibility for asylum
since returning to the United States in 1998” because, “[w]hile there have been a
number of changing governments in Sierra Leone since [petitioner] departed,
[petitioner] bases his fear of returning to Sierra Leone on events that occurred under
a former government in 1992.” Id. at 7.
The IJ also concluded that petitioner could not rely on his alleged marriage to
a United States citizen as a basis for asylum where he had not presented any
testimony from his wife nor shown that he had filed an I-130 application.
The IJ then explained:
In this case, [petitioner] has not presented a reasonable explanation for
his failure to file a timely request for asylum. [Petitioner] may have been
pursuing some other type of Immigration relief, but I do not find that it
meets the extraordinary circumstances exception for the delay in filing.
[Petitioner] was not suffering any serious illness or mental disability.
Apparently, he consulted with an Immigration consultant prior to his
apprehension by the [INS] in September 2001, and did not present any
other evidence supporting the delay in his filing for asylum. This Court
notes that [petitioner] was well aware of his right to file for asylum,
having previously abandoned a request for asylum in Los Angeles,
California in 1994. . . . [A]fter consideration of the totality of the
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circumstances, I do not believe that [petitioner] meets either the changed
circumstances or the exceptional circumstances exception for his failure
to file within one year of arrival in the United States.
Id. at 9.
The IJ further determined, based on the evidence, that petitioner had been
“firmly resettled” in Great Britain prior to entering the United States in 1998. Finally,
the IJ noted that, even if petitioner were not barred from asylum by the one-year filing
deadline nor precluded because of his firm resettlement in Great Britain, he still could
not establish that he was a refugee within the statutory definition. The IJ concluded:
“While [petitioner] may ‘subjectively fear’ returning to Sierra Leone, I do not find
any ‘reasonably objective evidence’ that would support a well-founded fear of future
persecution. Therefore, the request for asylum must be denied.” Id. at 16. The IJ
additionally held that petitioner had failed to satisfy the even higher standard of proof
for establishing withholding of removal or protection under the CAT. Accordingly,
the IJ denied petitioner’s request for relief in its entirety and ordered him removed to
Great Britain or, alternatively, Sierra Leone. Id. at 17-18.
Petitioner appealed the IJ’s decision to the BIA. Upon review, the BIA
affirmed, explaining as follows:
As we do not find the Immigration Judge’s factual findings to be
clearly erroneous, we affirm and adopt the Immigration Judge’s
October 22, 2002, decision. See Matter of Burbano, 20 I&N Dec. 872,
874 (BIA 1994) (noting that adoption or affirmance of a decision of an
Immigration Judge, in whole or in part, is “simply a statement that the
Board’s conclusions upon review of the record coincide with those
which the [I]mmigration [J]udge articulated in his or her decision”); see
generally 8 C.F.R. § 1003.1(d)(3)(i) (2003) (stating that the Board shall
review factual determinations, including credibility findings, “only to
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determine whether the findings of the immigration judge are clearly
erroneous.”).
BIA Order at 1. This petition for review followed.
Discussion
Asylum
Petitioner challenges the BIA’s determination that he failed to show
exceptional circumstances to excuse his failure to apply for asylum within the one-
year time limit under 8 U.S.C. § 1158(a)(2)(B). As a threshold matter, we consider
the government’s argument that we lack jurisdiction to review this issue. See Brief
for Appellee at 19 (citing Somakoko v. Gonzales, 399 F.3d 882, 883-84 (8th Cir.
2005) (Somakoko); Ismailov v. Reno, 263 F.3d 851, 855 (8th Cir. 2001) (Ismailov)).
Section 1158(a) of Title 8, United States Code, provides in relevant parts:
(a) Authority to apply for asylum
(1) In general
Any alien who is physically present in the United States
or who arrives in the United States . . . irrespective of such
alien’s status, may apply for asylum in accordance with this
section or, where applicable, section 1225(b) of this title.
(2) Exceptions
....
(B) Time limit
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Subject to subparagraph (D), paragraph (1) shall not
apply to an alien unless the alien demonstrates by clear and
convincing evidence that the application has been filed
within 1 year after the date of the alien’s arrival in the
United States.
(C) Previous asylum applications
Subject to subparagraph (D), paragraph (1) shall not
apply to an alien if the alien has previously applied for
asylum and had such application denied.
(D) Changed circumstances
An application for asylum of an alien may be considered,
notwithstanding subparagraphs (B) and (C), if the alien
demonstrates to the satisfaction of the Attorney General
either the existence of changed circumstances which
materially affect the applicant’s eligibility for asylum or
extraordinary circumstances relating to the delay in filing
an application within the period specified in subparagraph
(B).
(3) Limitation on judicial review
No court shall have jurisdiction to review any determination of the
Attorney General under paragraph (2).
8 U.S.C. § 1158(a) (emphasis added).
The statutory language above plainly excludes our jurisdiction to review the
BIA’s determinations that: (1) petitioner’s application for asylum was not filed within
one year after his arrival in the United States; (2) no changed circumstances
materially affected his eligibility for asylum; and (3) the untimeliness of his filing was
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not justified by extraordinary circumstances. See Ismailov, 263 F.3d at 855
(Ҥ 1158(a)(3) clearly indicates congressional intent to preclude judicial review of
decisions made pursuant to § 1158(a)(2), notwithstanding any other provision in the
statute. Accordingly, we conclude that we have no jurisdiction to address Ismailov’s
claim that the Board erred by determining that he did not demonstrate extraordinary
circumstances related to his untimely application for asylum.”).
In oral argument before this court, petitioner argued that we have jurisdiction
in the present case to review the BIA’s decisions made pursuant to § 1158(a)(2)
because he has raised a procedural due process challenge. According to petitioner,
the language of the BIA’s order indicates that the BIA was adopting only the IJ’s
findings of fact, not its conclusions of law. See BIA Order at 1 (“As we do not find
the Immigration Judge’s factual findings to be clearly erroneous, we affirm and adopt
the Immigration Judge’s October 22, 2002, decision.”). Based upon this
interpretation of the BIA’s order, petitioner suggests that he has been denied
meaningful review of the IJ’s legal conclusions, resulting in a deprivation of
procedural due process. In support of this argument, petitioner cites Gjyzi v.
Ashcroft, 386 F.3d 710, 714 (6th Cir. 2004) (“In this case, the denial of asylum to
Gjyzi based on the timeliness of his asylum application may be correct or incorrect,
but at present, it lacks an actual or divinable reasoned basis, which raises due process
concerns and compels us to vacate the order denying asylum and to return the case
to the immigration authorities for further explanation.”). Petitioner also contends that
Somakoko, 399 F.3d at 883-84, cited by the government, is not a contrary decision.
In Somakoko, this court acknowledged the possibility of an exception to the
jurisdictional bar in § 1158(a)(3) for claims alleging a deprivation of procedural due
process. 399 F.3d at 883 (“[C]ourts are understandably reluctant to conclude that
Congress intended to preclude all judicial review of constitutional issues, including
procedural due process claims.”). However, in that case, we determined that the
petitioner’s due process claim was without merit. Consequently, it was unnecessary
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to decide at that time “the troubling question whether relief from an untimeliness
ruling may ever be granted on procedural due process grounds.” Id. at 883 (emphasis
original). Similarly, in the present case, petitioner’s due process claim is clearly
without merit. Contrary to petitioner’s argument, there is no basis on which to
conclude that the BIA failed to review the legal analysis and conclusions of the IJ.
Indeed, the BIA specifically cited Matter of Burbano, 20 I&N Dec. 872, 874 (BIA
1994), for the express proposition that “adoption or affirmance of a decision of an
Immigration Judge, in whole or in part, is ‘simply a statement that the Board’s
conclusions upon review of the record coincide with those which the [I]mmigration
[J]udge articulated in his or her decision’.” See BIA Order at 1 (citation and
parenthetical) (emphasis added). Moreover, by specifically stating that it did not find
the IJ’s factual findings to be clearly erroneous, the BIA was not suggesting that it did
not adopt the IJ’s legal conclusions. The BIA was merely confirming that it
understood its obligation to review the IJ’s factual determinations for clear error, as
further demonstrated by its reference to the pertinent regulation. See id. (citing 8
C.F.R. § 1003.1(d)(3)(i) (setting forth clear error standard of review)).
Accordingly, we hold that we lack jurisdiction to review the BIA’s denial of
petitioner’s request for asylum.
Countries for removal
Petitioner separately argues that the BIA erred in ordering his removal to
Great Britain or, alternatively, Sierra Leone. Petitioner argues that the designation
of Great Britain or Sierra Leone was improper because the government presented no
evidence that either country would accept him, and, moreover, he presented evidence
indicating that neither Great Britain nor Sierra Leone “ recognized [his] right to
status.” Brief for Appellant at 15. Thus, he concludes, to designate either Great
Britain or Sierra Leone as a country for his removal violates 8 U.S.C.
§ 1231(b)(2)(E)(vii) and constitutes reversible error. Id. at 15-16.
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Section 1231(b)(2)(E) of Title 8, United States Code, provides:
(E) Additional removal countries
If an alien is not removed to a country under the previous
subparagraphs of this paragraph, the Attorney General shall remove the
alien to any of the following countries:
(i) The country from which the alien was admitted to the
United States.
(ii) The country in which is located the foreign port from which
the alien left for the United States or for a foreign territory
contiguous to the United States.
(iii) A country in which the alien resided before the alien
entered the country from which the alien entered the United
States.
(iv) The country in which the alien was born.
(v) The country that had sovereignty over the alien’s birthplace
when the alien was born.
(vi) The country in which the alien’s birthplace is located when
the alien is ordered removed.
(vii) If impracticable, inadvisable, or impossible to remove the
alien to each country described in a previous clause of this
subparagraph, another country whose government will accept the
alien into that country.
8 U.S.C. § 1231(b)(2)(E).
In the present case, petitioner declined to designate a country for removal under
8 U.S.C. § 1231(b)(2)(A). Under the circumstances, the IJ designated Great Britain
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as the primary country for removal based upon petitioner’s testimony that he lived in
Great Britain for four years before entering the United States and, as an alternative,
Sierra Leone based on petitioner’s testimony that he was born in Sierra Leone.
Section 1231(b)(2)(E) establishes that an alien may be removed to a country
of which he or she is neither a citizen, a national, nor a subject. Moreover, the
Supreme Court recently confirmed that an alien may be removed under any of
subsections (i) through (vi) without the prior consent of the government of the
country designated for removal. Jama v. Immigration & Customs Enforcement, 125
S. Ct. 694, 698-706 (2005) (holding that, under § 1231(b)(2)(E)(iv), an alien may be
removed to the country in which he or she was born even if that country’s
government has not given its prior consent).
Accordingly, we hold that the BIA did not err in ordering petitioner removed
to Great Britain or, alternatively, Sierra Leone.
Conclusion
For the reasons stated, the petition for review is denied.
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