Ramadan v. Gonzales ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NEAMA EL SAYED RAMADAN; GASER  No. 03-74351
HESHAM EL GENDY,
Petitioners, Agency Nos.
v.  A79-561-874
A79-561-875
ALBERTO R. GONZALES, Attorney
ORDER AND
General,
OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
August 12, 2005—San Francisco, California
Opinion Filed November 2, 2005
Reheard and Resubmitted
July 25, 2006—San Francisco, California
Opinion Withdrawn February 22, 2007
Filed February 22, 2007
Before: Harry Pregerson, Michael Daly Hawkins, and
Sidney R. Thomas, Circuit Judges.
Per Curiam Opinion
2023
2026 RAMADAN v. GONZALES
COUNSEL
Amos Lawrence, San Francisco, California, for the petition-
ers.
Peter D. Keisler, Richard M. Evans, Carl J. McIntyre, Jr.,
David J. Kline, Bryan S. Beier, Washington, D.C., for the
respondent.
RAMADAN v. GONZALES 2027
Lucas Guttentag, Jennifer Chang, Oakland, California; Lee
Gelernt, Omar C. Jadwat, New York, New York; Mary Ken-
ney, Washington, D.C., for amici curiae American Civil Lib-
erties Union Foundation Immigrants’ Rights Project and
American Immigration Law Foundation.
ORDER
With the granting of the petition for rehearing, the opinion
filed on November 2, 2005, is withdrawn and the attached
opinion is hereby filed. No further petitions for rehearing or
rehearing en banc will be entertained.
OPINION
PER CURIAM:
We granted rehearing in this case to reconsider the scope
of our jurisdiction under the Real ID Act, Pub L. No. 109-13
§ 106(a) (2005), to review an agency decision under 8 U.S.C.
§ 1158(a)(2). When we originally decided this case, we deter-
mined that the phrase “questions of law” in section 106 of the
Real ID Act “refer[red] to a narrow category of issues regard-
ing statutory construction.” Ramadan v. Gonzales, 427 F.3d
1218, 1222 (9th Cir. 2005). As a consequence, we concluded
that we lacked jurisdiction to review the Immigration Judge’s
(“IJ”) determination that Petitioner Ramadan had failed to
show changed circumstances to excuse the late filing of her
application for asylum. Id.
We now hold that our jurisdiction over “questions of law”
as defined in the Real ID Act includes not only “pure” issues
of statutory interpretation, but also application of law to
undisputed facts, sometimes referred to as mixed questions of
law and fact. See Pullman-Standard v. Swint, 456 U.S. 273,
2028 RAMADAN v. GONZALES
289 n.19 (1982) (defining mixed questions as those “in which
the historical facts are admitted or established, the rule of law
is undisputed, and the issue is whether the facts satisfy the
statutory standard, or to put it another way, whether the rule
of law as applied to the established facts is or is not violat-
ed”). By implying a fixed dichotomy between fact and law,
our brief initial opinion inadvertently failed to consider an
important category of cases—those that raise mixed questions
of law and fact. We join the Second Circuit in holding that
“questions of law” is broader than just statutory interpretation.
Chen v. Gonzales, 471 F.3d 315, 326-27 (2d Cir. 2006) (“We
construe the intent of Congress’s restoration under the Real
ID Act rubric of ‘constitutional claims or questions of law’ to
encompass the same types of issues that courts traditionally
exercised in habeas review over Executive detentions”). Our
conclusion is compelled by the congressional intent underly-
ing the enactment of the Real ID Act and principles of statu-
tory interpretation, most importantly the doctrine of
constitutional avoidance. This renewed discussion is primarily
framed by the Supreme Court’s decision in INS v. St. Cyr, 533
U.S. 289 (2001), and the subsequent enactment of the Real ID
Act in response to that decision.
In reassessing our opinion in view of these considerations,
we conclude that we have jurisdiction to review Ramadan’s
challenge to the IJ’s determination that Ramadan failed to
show changed circumstances to excuse the untimely filing of
her application for asylum. Conducting such review, we hold
that the record does not compel the contrary conclusion.
Our jurisdiction over Ramadan’s application for withhold-
ing of removal was unaffected by our interpretation of section
106, and with respect to withholding, we continue to find that
“the record does not compel the conclusion that it is ‘more
likely than not’ that Ramadan would suffer persecution if
returned to Egypt.” Ramadan, 427 F.3d at 1223. We therefore
deny the petition for review as to both asylum and withhold-
ing of removal.
RAMADAN v. GONZALES 2029
I
We detailed the facts and procedural history of this case in
our prior opinion. Id. at 1220. Lead petitioner Neama El
Sayed Ramadan is a native and citizen of Egypt. She earned
degrees in physical education and rhythmic gymnastics from
the University of Alexandria and then began teaching gym-
nastics and aerobics in Alexandria. Believing that “a woman
should have her own opinion and should have her own way
of living,” Ramadan dressed in western attire and was consis-
tently outspoken about her beliefs. As a result, she had prob-
lems with Islamic men, receiving threats in several instances.
In 1999, Ramadan was again threatened, this time with the
kidnaping of her son. This prompted her to leave Egypt for
the United States with her son, where her husband and other
family lived. Id. She arrived in September 1999. Id.
In February 2001, Ramadan attended a meeting with some
100-120 other people in San Francisco, where she participated
in a discussion about women’s liberty and role in Egypt. Id.
at 1221. Shortly thereafter, Ramadan’s parents and a friend in
Egypt informed her that, because of the opinions she had
expressed at the San Francisco meeting, someone in Egypt
was looking for her and making threats as to what would hap-
pen if she were to return to Egypt. Id.
In June 2001, Ramadan filed applications for asylum and
withholding of removal, claiming that she feared returning to
Egypt on the basis of the threats she had experienced both
before and after her arrival in the United States. Both applica-
tions were denied by an IJ.1 Ramadan conceded that she failed
to file her asylum application within one year of entry into the
United States, as is required under 8 U.S.C. § 1158(a)(2)(B),
but argued before the IJ that her application could be consid-
ered based on “changed circumstances” that materially
1
The IJ also denied Ramadan’s application for relief under the Conven-
tion Against Torture, but she does not challenge that decision here.
2030 RAMADAN v. GONZALES
affected her eligibility for relief. 8 U.S.C. § 1158(a)(2)(D); 8
C.F.R. § 208.4. The IJ rejected the claim of changed circum-
stances and found Ramadan’s asylum application untimely.
The IJ also rejected Ramadan’s application for withholding of
removal, because she had not shown that it was “more likely
than not” that she would be persecuted were she to return to
Egypt. The Board of Immigration Appeals (“BIA”) summa-
rily affirmed the IJ’s decision, and Ramadan timely filed this
petition for review.
II
As always, “we ‘have jurisdiction to determine whether
jurisdiction exists.’ ” Flores-Miramontes v. INS, 212 F.3d
1133, 1135 (9th Cir. 2000) (quoting Aragon-Ayon v. INS, 206
F.3d 847, 849 (9th Cir. 2000)). Our jurisdiction to review the
agency’s denial of Ramadan’s application for withholding of
removal is conferred by 8 U.S.C. § 1252(a). Hakeem v. INS,
273 F.3d 812, 816 (9th Cir. 2001).
[1] The issue of our jurisdiction to review the denial of
Ramadan’s asylum application is more complicated. Under 8
U.S.C. § 1158(a)(2)(B), an alien seeking asylum must file an
application within one year of arrival in the United States,
unless one of two statutory exceptions applies. See 8 U.S.C.
§ 1158(a)(2)(D) (late applications may be considered “if the
alien demonstrates to the satisfaction of the Attorney General
either the existence of changed circumstances which materi-
ally affect the applicant’s eligibility for asylum or extraordi-
nary circumstances relating to the delay in filing an
application”); 8 C.F.R. § 208.4(a)(4)(i) (listing examples of
“changed circumstances . . . materially affecting the appli-
cant’s eligibility for asylum”); 8 C.F.R. § 208.4(a)(5)(i) - (iv)
(listing examples of “extraordinary circumstances . . . directly
related to the failure to meet the one-year deadline”). Rama-
dan argues that the IJ should have considered her asylum
application because changed circumstances materially
affected her eligibility for relief.
RAMADAN v. GONZALES 2031
[2] Whether we can review the IJ’s determination that
Ramadan had not shown such changed circumstances depends
on the extent to which section 106 of the Real ID Act restores
our jurisdiction. Prior to the passage of the Real ID Act, 8
U.S.C. § 1158(a)(3) precluded our review of any determina-
tion relating to the application of the one-year bar.2 Hakeem,
273 F.3d at 815. Section 106 of the Real ID Act of 2005
restores our jurisdiction over “constitutional claims or ques-
tions of law.”3 Fernandez Ruiz v. Gonzales, 410 F.3d 585, 587
(9th Cir. 2005). Our jurisdiction therefore turns on whether
the “changed circumstances” claim presents a “question of
law”: if it does, section 106 restores our jurisdiction, but if it
does not, the § 1158(a)(3) jurisdictional bar applies and we
lack jurisdiction.4 In our prior opinion, we held that “ques-
tions of law” meant only “a narrow category of issues regard-
ing statutory construction.” Ramadan, 427 F.3d at 1222.
“Changed circumstances,” we held, was an “essentially fac-
tual [question] and thus not a ‘question of law’ within the
2
8 U.S.C. § 1158(a)(3) provides that “[n]o court shall have jurisdiction
to review any determination of the Attorney General under paragraph (2).”
8 U.S.C. § 1158(a)(2)(D) permits the consideration of asylum applications
filed beyond the one year deadline “if the alien demonstrates to the satis-
faction of the Attorney General . . . the existence of changed circum-
stances which materially affect the applicant’s eligibility for asylum.”
3
Section 106 of the Real ID Act modified 8 U.S.C. § 1252(a)(2)(D) to
read:
Nothing in . . . any other provision of this chapter (other than this
section) which limits or eliminates judicial review, shall be con-
strued 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.
Real ID Act of 2005, Pub. L. 109-13, 119 Stat. 231, codified as amended
at 8 U.S.C. § 1252(a)(2)(D).
4
Because Ramadan neither disputes the IJ’s factual determination that
she had filed her asylum application more than one year after her arrival
in the United States, nor argues that there were constitutional dimensions
to her claim, only the “questions of law” clause is relevant to the issue of
our jurisdiction.
2032 RAMADAN v. GONZALES
meaning of the Real ID Act.” Id. at 1220. We now hold that
“questions of law,” as it is used in section 106, extends to
questions involving the application of statutes or regulations
to undisputed facts, sometimes referred to as mixed questions
of fact and law. Further, we hold that the “changed circum-
stances” question presented by Ramadan’s petition is a ques-
tion of the application of a statutory standard to undisputed
facts, over which we have jurisdiction.
III
We are mindful of the legal development—both legislative
and judicial—that has led to the current constraints on judicial
review of immigration decisions, presently embodied in the
Real ID Act. Notably, Congress consciously deemed the his-
tory of judicial review over immigration decisions relevant to
the enactment of the Real ID Act, as indicated by the House
Conference Committee Report on the Act. See H.R. Rep. No.
109-72, at 174-75 (2005), as reprinted in 2005 U.S.C.C.A.N.
240, 299 (describing in detail the development of federal
review over immigration agency decisions, from the pre-1996
regime until the time of enactment).
Until the passage of the 1952 Immigration and Nationality
Act (“INA”), a habeas petition was the only mechanism by
which an alien could challenge a deportation order. Zank v.
Landon, 205 F.2d 615, 616 (9th Cir. 1953) (noting that “a
deportation may be attacked only in a habeas corpus proceed-
ing”); Heikkila v. Barber, 345 U.S. 229, 235 (1953) (“Now,
as before, [the appellant] may attack a deportation order only
by habeas corpus.”). After 1952, the judicial review provi-
sions of the Administrative Procedure Act (“APA”) were
made applicable to cases arising under the INA. Shaughnessy
v. Pedreiro, 349 U.S. 48 (1955). “Habeas Corpus came to be
employed as a nominal vehicle for judicial review under the
standards of the APA, largely interchangeable with other pro-
cedural vehicles, and the focus on the constitutional minimum
faded into history.” Gerald L. Neuman, Habeas Corpus, Exec-
RAMADAN v. GONZALES 2033
utive Detention, and the Removal of Aliens, 98 Colum. L.
Rev. 961, 1020 (1998). From 1953 to 1961, habeas corpus
remained the primary remedy in immigration cases.
With enactment of amendments to the INA in 1961, Con-
gress established a base grant of judicial review through peti-
tions for review of final deportation orders, and established a
new specific habeas remedy in INA § 106(a)(10). Congress
specified that deportation orders were to be challenged via
petitions for review in the courts of appeals, effectively
streamlining such review. Act of Sept. 26, 1961, Pub. L. No.
87-301, § 5, 75 Stat. 651 (codified as amended at 8 U.S.C.
§ 1105(a) (repealed 1996)).
However, in 1996 Congress altered this scheme of review,
enacting the Antiterrorist and Effective Death Penalty Act
(“AEDPA”). Pub. L. No. 104-132, 110 Stat. 1214 (1996).
Section 440(a) of the Act precluded all judicial review of final
removal orders of aliens deported for committing certain
types of crimes, also known as “criminal aliens.” See AEDPA
§ 440(a), 8 U.S.C. § 1105a(1)(10) (West Supp. 1998). Con-
gress also passed the Illegal Immigration Reform and Immi-
grant Responsibility Act (“IIRIRA”) that year, expanding
AEDPA’s preclusion of review over criminal alien deporta-
tion orders and further limiting review over many discretion-
ary agency decisions. Pub. L. No. 104-208, 110 Stat. 3009-
549 (1996) (codified at 8 U.S.C. § 1252 (2000)).
In INS v. St. Cyr, the Supreme Court determined the scope
of judicial review in a post-AEDPA/IIRIRA regime in light of
the requirements of the Suspension Clause of the Constitution.5
533 U.S. 289 (2001). St. Cyr, an alien convicted of an aggra-
5
The Suspension Clause reads: “The Privilege of the Writ of Habeas
Corpus shall not be suspended, unless when in Cases of Rebellion or Inva-
sion the public Safety may require it.” United States Constitution, Article
I, § 9. See generally, W. H. Rehnquist, All the Laws But One: Civil Liber-
ties in Wartime (1998).
2034 RAMADAN v. GONZALES
vated felony, petitioned for habeas review of a “pure” ques-
tion of law in district court under the general federal habeas
corpus provision, 22 U.S.C. § 2241, notwithstanding AEDPA
and IIRIRA’s express prohibition on judicial review of depor-
tation orders for such criminal aliens.6 Id. at 293, 298. The
Court held that Congress did not strip the district courts of
jurisdiction to decide petitions brought by criminal aliens like
St. Cyr under general habeas review, reasoning that Congress
did not speak sufficiently clearly to wholly preclude judicial
review of a pure question of law—an action that would “raise
serious constitutional questions.” Id. at 301-314. According to
the Court, wholesale repeal of habeas jurisdiction over pure
questions of law would be constitutionally suspect because,
“at the absolute minimum, the Suspension Clause protects the
writ ‘as it existed in 1789,’ ” and there was sufficient histori-
cal evidence to indicate that pure questions of law like the one
raised by St. Cyr would have been answered in 1789.7 Id. at
301-305. This conclusion was further compelled by the strong
presumption of judicial review over administrative action and
the presumption against repeals of habeas jurisdiction. Id. at
298.
[3] Importantly, St. Cyr helped define the historical scope
of questions of law, stating: “[I]ssuance of the writ . . .
encompassed detentions based on errors of law, including the
erroneous application or interpretation of statutes.” Id. at 302
6
Specifically, St. Cyr raised the question of whether the Attorney Gen-
eral lacked authority under AEDPA and IIRIRA to grant discretionary
relief from deportation for noncitizens convicted of aggravated felonies—
a “pure” question of law, according to the St. Cyr Court. St. Cyr, 533 U.S.
at 293.
7
However, the St. Cyr. Court did indicate that the Constitution might
not require habeas review in the district courts, stating that: “Congress
could, without raising any Constitutional questions, provide an adequate
substitute though the courts of appeals.” 533 U.S. at 314 n.38. The Real
ID Act accepted this invitation and streamlined judicial review of removal
orders, clearly stating that questions of law be reviewed exclusively in the
courts of appeal.
RAMADAN v. GONZALES 2035
(emphasis added). See also Chen, 471 F.3d at 327-28 (relying
on same passage and discussing the history of habeas review).
Further, the Court cited Mahler v. Eby, 264 U.S. 32, 46
(1924)—which the Court characterized as resolving the ques-
tion of “whether the absence of an explicit factual finding that
the aliens were ‘undesirable’ invalidated the warrant of
deportation”—to support its proposition that courts would
answer questions of law in determining the legality of an
Executive detention during the pre-INA regime. St. Cyr, 533
U.S. at 306-07 n.29. St. Cyr therefore indicates that mixed
questions of fact and law—those involving an application of
law to undisputed fact—should be provided meaningful judi-
cial review, lest serious constitutional questions be raised.
Moreover, under the pre-INA habeas regime, mixed questions
of law and fact have been historically reviewable on habeas,
further supporting the proposition that such questions are enti-
tled to some form of review. See Gerald L. Neuman, The Real
ID Act and the Suspension Clause, 10-20 Bender’s Immigr.
Bull. 1 (2005) (Oct. 15, 2005) (“[C]ase law of the pre-INA
period and post-St. Cyr cases in the courts of appeals illustrate
that the traditional scope of review also extends to ‘mixed’
questions of law and fact, in the sense of the application of
legal standards to the facts as found by the administrative
agency.” (citing Mahler; Delgadillo v. Carmichael, 332 U.S.
388 (1947) (habeas review of deportation order determining
that a noncitizen’s return to the United States under “fortu-
itous and capricious” circumstances did not constitute an
“entry”); Hansen v. Haff, 291 U.S. 559 (1934) (determining
on habeas review whether an alien entered for an “immoral
purpose”); Cadet v. Bulger, 377 F.3d 1173 (11th Cir. 2004);
Bakhtriger v. Elwood, 360 F.3d 414 (3d Cir. 2004); Wang v.
Ashcroft, 320 F.3d 130 (2d Cir. 2003)).
[4] St. Cyr left instructions for both Congress and the
lower courts, with a view to conform with the requirements
of the Suspension Clause: Congress was required to provide
adequate and effective review for all aliens subject to
removal; we are required to interpret congressional enact-
2036 RAMADAN v. GONZALES
ments restricting the right to review consistent with the man-
dates of the Suspension Clause. Congress assumed this task
in enacting the Real ID Act, with the explicit intent to give
“every alien one day in the court of appeals, satisfying consti-
tutional concerns,” H.R. Rep. No. 109-72, at 175 (2005), as
reprinted in 2005 U.S.C.C.A.N. 240, 299, and we are com-
pelled to interpret the Act accordingly. See Chen, 471 F.3d at
326-27 (noting Congress’ intent to comply with St. Cyr in
enacting the Real ID Act).
[5] The Real ID Act repeals general habeas corpus jurisdic-
tion over orders of removal, but provides us jurisdiction over
“questions of law.” However, the judicial review clause of the
Act does not address whether we have jurisdiction over mixed
questions of law and fact—those situations in which the his-
torical facts and applicable legal standard are undisputed but
the agency’s application of those facts to law are at issue.
Real ID Act § 106(a)(1)(A)(iii) (codified at 8 U.S.C.
§ 1252(a)(2)(C)). See also Chen, 471 F.3d at 324-25 (finding
the term “questions of law” to be ambiguous and turning to
legislative history for guidance). Therefore, we look to the
legislative history of the Real ID Act to determine congressio-
nal intent. See Bates v. United Parcel Service, Inc., 465 F.3d
1069, 1082 (9th Cir. 2006) (noting that reference to legislative
history is appropriate if the statutory provision is ambiguous
(citing Coeur D’Alene Tribe v. Hammond, 384 F.3d 674, 692
(9th Cir. 2004))). Although the Real ID Act was clearly
prompted by a dissatisfaction with the post-St. Cyr system of
review, Congress was careful to tailor its legislation to the
constitutional requirements of the Suspension Clause, as
announced by St. Cyr. H.R. Rep. No. 109-72, at 174-75
(2005), as reprinted in 2005 U.S.C.C.A.N. 240, 299 (describ-
ing the two-tiered system of review that developed for crimi-
nal aliens after St. Cyr as the primary impetus for eliminating
district court habeas review over orders of removal); id. (ref-
erencing St. Cyr’s constitutional mandate for adequate review
and stating that section 106 was drafted to ensure such
review). Because the Conference Report indicates congressio-
RAMADAN v. GONZALES 2037
nal adherence to St. Cyr’s constitutional mandates, and
because preclusion of judicial review over mixed questions of
law and fact would raise serious constitutional questions
under St. Cyr, the legislative history indicates that Congress
intended to grant review over such questions. Cf. Chen, 471
F.3d at 378-28 (holding that because historical habeas review
extended beyond statutory construction, as indicated in St.
Cyr, the scope of “questions of law” of the Real ID Act was
similarly extended). Indeed, the Conference Report explicitly
envisions judicial review of mixed questions of law and fact,
stating: “When a court is presented with a mixed question of
law and fact, the court should analyze it to the extent that
there are legal elements, but should not review any factual
elements.” Id. at 175. This statement squarely fits within our
holding, which mandates review only when the underlying
facts are undisputed.
[6] It is important to note that the Conference Report also
states that “the word ‘pure,’ in the phrase ‘pure question of
law,’ which had appeared in prior versions . . . . has been
deleted from that phrase in the final version in this subpara-
graph because it is superfluous.” H.R. Rep. No. 109-72, at
174-75 (2005), as reprinted in 2005 U.S.C.C.A.N. 240, 299.
We are now persuaded that the deletion of the word ‘pure,’
coupled with the report’s specific reference to mixed ques-
tions within the same paragraph and Congress’ general intent
to provide adequate and effective review in conformity with
the Suspension Clause, indicates that questions of law
includes mixed questions of law and fact. Id. See also Aaron
G. Leiderman, Note, Preserving the Constitution’s Most
Important Right: Judicial Review of Mixed Questions Under
the Real ID Act, 106 Colum. L. Rev. 1367, 1397 (2006). Sim-
ilarly, in light of Congress’ intent to comply with St. Cyr, we
do not view Congress’ description of the provision as encom-
passing “constitutional and statutory-construction questions,”
H.R. Rep. No. 109-72, at 175 (2005), as reprinted in 2005
U.S.C.C.A.N. 240, 299, as an exhaustive list which constrains
our interpretation. See Chen, 471 F.3d at 326 (“While the
2038 RAMADAN v. GONZALES
Conference report refers to ‘statutory construction questions,’
we do not interpret that reference to be exhaustive, merely
illustrative.”).
As indicated by our discussion of St. Cyr, our conclusion
is compelled by principles of constitutional avoidance, pre-
cluding a constitutionally suspect alternative. Cf. St. Cyr, 533
U.S. at 301 n.13 (“The fact that this Court would be required
to answer the difficult question of what the Suspension Clause
protects is in and of itself a reason to avoid answering the
constitutional questions that would be raised by concluding
that review was barred entirely.”). See also Kamara v. Atty.
Gen., 420 F.2d 202, 211 & n.5 (3d Cir. 2005). The Supreme
Court has been careful to construe statutes in light of the Sus-
pension Clause. See, e.g., St. Cyr, 533 U.S. at 299-300 (“[I]f
an otherwise acceptable construction of a statute would raise
serious constitutional problems, and where an alternative
interpretation of the statute is ‘fairly possible,’ we are obli-
gated to construe the statute to avoid such problems.” (quot-
ing Crowell v. Benson, 285 U.S. 22, 62 (1932))).
[7] We therefore conclude that the phrase “questions of
law” as it is used in section 106 of the Real ID Act includes
review of the application of statutes and regulations8 to undis-
puted historical facts. This construction is amply supported by
the statute and legislative history, and a narrower interpreta-
tion would pose a serious Suspension Clause issue.
IV
Before turning to the specifics of Ramadan’s claim, we
note that this case does not involve a challenge to the agen-
cy’s exercise of discretion. Section 106 does not restore juris-
8
See Chen, 471 F.3d at 327-30 (determining that because St. Cyr stated
that interpretation of regulations was historically reviewed on habeas peti-
tion, “questions of law” in section 106 encompasses the interpretation of
regulations).
RAMADAN v. GONZALES 2039
diction over discretionary determinations. Because, however,
review of such determinations was not traditionally available
on habeas review, there is no Suspension Clause problem. See
St. Cyr, 533 U.S. at 307 (referring to the “strong tradition in
habeas corpus law . . . that subjects the legally erroneous fail-
ure to exercise discretion, unlike a substantively unwise exer-
cise of discretion, to inquiry on the writ” (quoting Gerald L.
Neuman, Jurisdiction and the Rule of Law after the 1996
Immigration Act, 113 Harv. L. Rev. 1963, 1991 (2000)));
Gutierrez-Chavez v. INS, 298 F.3d 824, 828 (9th Cir. 2002)
(“[H]abeas is not available to claim that the INS simply came
to an unwise, yet lawful, conclusion when it did exercise its
discretion.”). Although we accept this, we dispute the govern-
ment’s characterization of the changed circumstances deter-
mination as “not only a ‘predominately factual’ inquiry, but
also a discretionary determination,” relying on the statutory
requirement that changed circumstances be established “to the
satisfaction of the Attorney General.”
[8] The words “to the satisfaction of the Attorney General”
do not render the changed circumstances determination dis-
cretionary. Instead, this phrase is a specification of who is to
make the decision, rather than a characterization of that deci-
sion itself. We come to this conclusion for several reasons.
First, when Congress wants to place something within the
Attorney General’s discretion, it either uses that word or a
phrase that the courts have held to function in this way. See
Kalaw v. INS, 133 F.3d 1147, 1152 (9th Cir. 1997) (analyzing
the former 8 U.S.C. § 1254(a)(1), which read that “the Attor-
ney General may, in his discretion, suspend deportation and
adjust the status to that of an alien lawfully admitted for per-
manent residence” in the case of certain aliens) (emphasis
added); 8 U.S.C. § 1182(c) (specifying classes of aliens who
“may be admitted in the discretion of the Attorney General
. . .” ) (emphasis added); St. Cyr, 533 U.S. at 293-94 (analyz-
ing 8 U.S.C. § 1182(c) as “the law that gave the Attorney
General discretion to waive deportation in certain cases”);
Matsuk v. INS, 247 F.3d 999, 1002 (9th Cir. 2001) (character-
2040 RAMADAN v. GONZALES
izing as discretionary the Attorney General’s determination
under 8 U.S.C. § 1231(b)(3)(B) that an aggravated felony is
a particularly serious crime where statute says “if the Attor-
ney General decides that . . .”).9 We have explicitly held that
“to the satisfaction of the Attorney General” does not render
a determination discretionary. See Nakamoto v. Ashcroft, 363
F.3d 874, 879-80 (9th Cir. 2004) (holding that a statutory sec-
tion of the INA uses the phrases “to the satisfaction of the
Attorney General” and “in the opinion of the Attorney Gener-
al” merely to specify the identity of the decisionmaker, and
not to make the determination discretionary).
Second, comparison to another statutory section further
supports that the particular phrase “to the satisfaction of the
Attorney General” does not trigger the Attorney General’s
discretion. Consider 8 U.S.C. § 1182(h), which reads in perti-
nent part:
The Attorney General may, in his discretion, waive
the application of subparagraphs (A)(i)(I), (B), (D),
and (E) of subsection (a)(2) and subparagraph
(A)(i)(II) of such subsection insofar as it relates to a
single offense of simple possession of 30 grams or
less of marijuana if—
(1)(A) in the case of any immigrant it is established
to the satisfaction of the Attorney General that—
(i) the alien is inadmissible only under subparagraph
(D)(i) or (D)(ii)of such subsection or the activities
for which the alien is inadmissible occurred more
than 15 years before the date of the alien’s applica-
tion for a visa, admission, or adjustment of status . . .
9
This is particularly true where, as here, the statutory language of the
jurisdictional bar requires such explicit specification. See 8 U.S.C.
§ 1252(a)(2)(B)(ii) (“[N]o court shall have jurisdiction to review . . . any
decision of the Attorney General the authority for which is specified . . .
to be in the discretion to the Attorney General. . . .”).
RAMADAN v. GONZALES 2041
(emphasis added). Because the Attorney General may grant a
waiver “in his discretion” if certain things are “established to
[his] satisfaction,” these phrases must have different mean-
ings, or the second one is rendered surplusage. See Schneider
v. Chertoff, 450 F.3d 944, 954 (9th Cir. 2006) (internal cita-
tion omitted) (“We strive to avoid constructions that render
words meaningless.” (internal citation omitted)); Williamson
v. C.I.R., 974 F.2d 1525, 1531 (9th Cir. 1992) (“We are not
at liberty to impose upon a statute a construction that renders
parts of its language nugatory.”).10 See also 8 U.S.C.
§ 1182(a)(9)(B)(v) (emphasis added) (“The Attorney General
has sole discretion to waive [the application of a particular]
clause [ ] in the case of an immigrant who is the spouse or son
or daughter of a United States citizen or of an alien lawfully
admitted for permanent residence, if it is established to the
satisfaction of the Attorney General that the refusal of admis-
sion to such immigrant alien would result in extreme hardship
to the citizen or lawfully resident spouse or parent of such
alien.”).
Third, this conclusion is consistent with our precedent on
the nature of discretionary determinations. As we stated in
Kalaw:
The plain language of IIRIRA precludes our direct
review of the Attorney General’s discretionary deci-
sions. However, assessing some of the aspects of
statutory eligibility for suspension of deportation
requires application of law to factual determinations.
As to those elements of statutory eligibility which do
not involve the exercise of discretion, direct judicial
review remains.
10
Of course, the prohibition on statutory constructions that render some
statutory language redundant also applies to the phrase “to the satisfaction
of the Attorney General.” Because we read this phrase “to specify the
identity of the decision-maker,” Nakamoto v. Ashcroft, 363 F.3d 874, 880
(9th Cir. 2004), there is no redundancy.
2042 RAMADAN v. GONZALES
133 F.3d at 1150. Even there, where the statute explicitly des-
ignated the overall determination to be discretionary, we rec-
ognized that the application of law to fact does not entail the
exercise of discretion. We held that only those determinations
that can properly be characterized as “subjective,” or “depen-
dent . . . upon the identity of the person or entity examining
the issue,” such as “whether an alien has good moral charac-
ter,” were “discretionary” and beyond this court’s review
under IIRIRA’s transitional jurisdictional provisions. Id. at
1151-52.
There is a significant difference between assessing the
quality of an alien’s moral character and whether changed cir-
cumstances have materially affected an alien’s eligibility for
asylum. While both determinations involve the exercise of
judgment, the changed circumstances determination does not
“depend[ ] upon the identity of the person or entity examining
the issue,” but rather is less value-laden and does not reflect
the decision maker’s beliefs in and assessment of worth and
principle.11
V
[9] We now turn to Ramadan’s claims. Ramadan’s chal-
lenge to the IJ’s determination that Ramadan failed to show
changed circumstances is a reviewable mixed question of law
and fact. The Supreme Court has defined such questions as
those in which “the historical facts are admitted or estab-
lished, the rule of law is undisputed, and the issue is whether
the facts satisfy the statutory standard.” Swint, 456 U.S. at 290
n.19. Here, the factual basis of Ramadan’s petition is undis-
11
We realize that other circuits hold the one-year bar to be a discretion-
ary decision of the Attorney General. See, e.g., Vasile v. Gonzales, 417
F.3d 766, 768 (7th Cir. 2005); Chacon-Botero v. U.S. Atty. Gen., 427 F.3d
954, 957 (11th Cir. 2005). However, because such a holding would con-
flict with other Ninth Circuit case law, as indicated in this section, we are
compelled to hold to the contrary.
RAMADAN v. GONZALES 2043
puted; we only review whether the IJ appropriately deter-
mined that the facts did not constitute “changed
circumstances” as defined by immigration law. Although we
have jurisdiction to hear Ramadan’s petition, we hold that the
record does not compel the conclusion that she has shown
“changed circumstances” so that her asylum application
should have been considered notwithstanding its late filing.
As for the merits of her application for withholding of
removal, unaffected by the jurisdictional bar, we continue to
hold that the record does not compel the conclusion that Ram-
adan has shown that it is more likely than not that she would
be persecuted were she to return to Egypt.
A
[10] According to 8 U.S.C. § 1158(a)(2)(D), “[a]n
[untimely] application for asylum of an alien may be consid-
ered . . . if the alien demonstrates to the satisfaction of the
Attorney General . . . the existence of changed circumstances
which materially affect the applicant’s eligibility for asylum.”
The regulations provide illustrations of “changed circum-
stances” that meet this standard:
The term “changed circumstances” in section
208(a)(2)(D) of the Act shall refer to circumstances
materially affecting the applicant’s eligibility for
asylum. They may include, but are not limited to:
(A) Changes in conditions in the applicant’s coun-
try of nationality . . .
(B) Changes in the applicant’s circumstances that
materially affect the applicant’s eligibility for asy-
lum, including changes in applicable U.S. law and
activities the applicant becomes involved in outside
the country of feared persecution that place the
applicant at risk; or
2044 RAMADAN v. GONZALES
(C) In the case of an alien who had previously
been included as a dependent in another alien’s
pending asylum application, the loss of the spousal
or parent-child relationship to the principal applicant
through marriage, divorce, or attainment of age 21.
8 C.F.R. § 208.4(a)(4)(i). Ramadan’s claim faces a profound
obstacle in that her testimony before the IJ belies her claim
before us that her circumstances have changed. Therefore,
rather than assessing whether certain changes rise to the level
of “materially affecting” her eligibility for asylum, we affirm
the IJ’s conclusion on the grounds that we find no changes in
Ramadan’s circumstances at all since her arrival in the United
States.
[11] To support the notion of “changes” in her “activities,”
Ramadan argues that the harassment that she experienced in
Egypt was on account of her failure to conform to Muslim tra-
dition, particularly, her Western attire and her occupation as
an aerobics instructor, and that the persecution that she fears
now is on account of the political opinions that she has
expressed publicly since her arrival in the United States. The
record does not support this distinction. During her hearing
before the IJ, Ramadan testified that she had problems from
“mostly the Islamic groups” because of her “outspoken”
nature:
A woman should have her own opinion and depen-
dent’s opinion should have a position in the society
to choose her way of thinking and way of vindica-
tion. A woman should have her own way of think-
ing. She should be liberal from all the pressures that
surrounding her from male in that society.
This testimony belies Ramadan’s claim that the harassment
she experienced in Egypt was on her clothing and her occupa-
tion, rather than on her political views, as well as her claim
that now, unlike in the past, she fears persecution from Mus-
RAMADAN v. GONZALES 2045
lim extremists. The record, therefore, does not compel the
conclusion that Ramadan showed changed circumstances to
excuse the late filing of her asylum application. We deny the
petition for review with respect to the asylum claim.
B
[12] To establish eligibility for mandatory relief of with-
holding of removal, an alien must show that it is “more likely
than not” that he or she will suffer persecution on account of
race, religion, nationality, membership in a particular social
group or political opinion. Chand v. INS, 222 F.3d 1066, 1079
(9th Cir. 2000). Ramadan concedes that the harassment that
she suffered in Egypt does not rise to the level of persecution,
and that she is therefore not entitled to a presumption of a
well-founded fear of future persecution. 8 C.F.R.
§ 208.16(b)(1)(i). Instead, she argues that the threats made
against her since her attendance at the San Francisco meeting
are of a different character and are sufficiently severe that
they compel us to find, in contrast to the IJ’s finding, that she
has a well-founded fear of future persecution upon which to
base her eligibility for withholding. See INS v. Elias-Zacarias,
502 U.S. 478, 481 & n.1 (1992) (holding that an agency deter-
mination is reversible on petition for review only if a reason-
able fact-finder would be compelled to reach the contrary
conclusion on the basis of the evidence contained in the
record). “The problem with this argument is that the threat[s]
[she has received since coming to the United States], at best,
‘support[ ] the inference—[they do] not compel it.” Ramadan,
427 F.3d at 1223 (citing Elias-Zacarias, 502 U.S. at 481 &
n.1). We therefore deny Ramadan’s petition for review with
respect to withholding of removal.
PETITION DENIED.