Sadruddin v. Gonzales ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 28, 2005
FOR THE TENTH CIRCUIT
Clerk of Court
MOHAMMAD SADRUDDIN,
Petitioner,
v. No. 05-9530
(No. A78-890-123)
ALBERTO R. GONZALES, Attorney (Petition for Review)
General,
Respondent.
ORDER *
Before KELLY, Circuit Judge, PORFILIO and BRORBY, Senior Circuit
Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
*
This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be
cited under the terms and conditions of 10th Cir. R. 36.3.
Petitioner Mohammad Sadruddin, a native and citizen of Pakistan, seeks
review of a decision of the Board of Immigration Appeals (BIA) dismissing his
appeal from the denial of his application for asylum. 1 Because we lack
jurisdiction over the only issue raised by Petitioner, we dismiss the petition for
review.
I.
Mr. Sadruddin was admitted to the United States on July 3, 2000 as a
nonimmigrant visitor, with authorization to remain until January 2, 2001. He
subsequently changed his status to nonimmigrant treaty investor and obtained
permission to remain until June 27, 2002. Mr. Sadruddin, however, stayed in the
United States after the visa expired.
In the course of removal proceedings, Mr. Sadruddin conceded that he had
overstayed his visa and was subject to removal under § 237(a)(1)(B) of the
Immigration and Nationality Act, 8 U.S.C. § 1227(a)(1)(B). He also applied for
asylum, with the defensive filing date of September 30, 2003. He stated that he
had recently converted to Christianity and, upon a return to Pakistan, he would be
1
The record contains two spellings of Petitioner’s surname. This order
refers to Petitioner as Mr. Sadruddin, the version used by his attorneys, rather
than as Mr. Sadruudin, the one adopted by the attorneys for the Office of
Immigration Litigation, United States Department of Justice.
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subject to physical harm, harassment, ridicule, and persecution for renouncing the
Islamic faith and its practices.
At the asylum hearing, the Immigration Judge (IJ) heard testimony from
Mr. Sadruddin about his embracing the Christian faith and about the potential
consequences in Pakistan for Christians and especially for apostates (individuals
who renounce Islam). Additionally, the assistant pastor of the Revival Fire
Ministries International Church stated that Mr. Sadruddin had accepted the tenets
of Christianity in February 2003, after a lengthy period of evangelism. To his
knowledge, though, Mr. Sadruddin had attended church services and classes only
a few times since his conversion. The final witness, Mr. Sadruddin’s brother,
essentially corroborated the previous testimony.
As further support for his claim, Mr. Sadruddin provided background
materials indicating that Pakistan is a predominantly Islamic nation with a strong
fundamentalist movement. According to the materials, the government of
Pakistan may charge a member of a religious minority for blasphemy and may
also fail to protect apostates from extremists who take it upon themselves to
enforce religious principles.
The IJ denied the asylum application on two grounds. First, the application
was filed later than the required one-year period after entry into the United States,
at a time when Mr. Sadruddin had overstayed his visa and had been employed in
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violation of his status. The IJ did not find that Mr. Sadruddin had demonstrated
either changed circumstances that materially affected his eligibility for asylum or
that the delay can be attributed to extraordinary circumstances. Second, the IJ
was “unable to find, given the nature and extent and description of respondent’s
religious activities, that his fears [of persecution] are ‘well-founded.’” Admin. R.
at 80. Accordingly, the IJ was not convinced that Mr. Sadruddin had brought “a
viable asylum claim.” Id. at 81.
The IJ denied Mr. Sadruddin’s application for asylum, along with his
requests for restriction withholding of removal and protection under the
Convention Against Torture. The BIA affirmed this decision without opinion.
When the BIA summarily affirms an IJ’s decision without providing its own
reasoning, we review the IJ’s decision as if it were the BIA’s opinion. Tsevegmid
v. Ashcroft, 336 F.3d 1231, 1235 (10th Cir. 2003).
II.
In his petition for review, Mr. Sadruddin challenges only the denial of
asylum. An alien may apply for asylum if he “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.” INA § 208(a)(2)(B), 8 U.S.C.
§ 1158(a)(2)(B). The Attorney General, however, may accept an otherwise
untimely application if the alien demonstrates either (1) “the existence of changed
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circumstances which materially affect [his] eligibility for asylum,” or (2)
“extraordinary circumstances relating to the delay in filing an application within
the period specified.” See INA § 208(a)(2)(D), 8 U.S.C. § 1158(a)(2)(D).
By statute, federal courts do not have “jurisdiction to review any
determination” on the timeliness of an application or the existence of changed or
extraordinary circumstances relating to a delayed filing. INA § 208(a)(3), 8
U.S.C. § 1158(a)(3). This court has interpreted the provision literally, holding
that we lack jurisdiction to review an IJ’s determination that an alien “did not file
his asylum application within the applicable one-year deadline and did not show
any circumstances excusing his tardiness.” Tsevegmid, 336 F.3d at 1235.
We have not re-visited the holding of Tsevegmid since the enactment of the
REAL ID Act of 2005, Pub. L. No. 109-13, § 106(a)(1)(A)(iii), 119 Stat. 231,
310. In the REAL ID Act, “Congress codified a new subparagraph, 8 U.S.C. §
1252(a)(2)(D), which expressly grants us jurisdiction to review constitutional
claims and legal questions raised in a petition for review of the agency’s
otherwise unreviewable discretionary decisions, notwithstanding the jurisdictional
limitations” in any provision of the INA. Schroeck v. Gonzales, 429 F.3d 947,
951 (10th Cir. 2005). The subparagraph applies “‘to cases in which the final
administrative order of removal, deportation, or exclusion was issued before, on,
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or after’” the enactment date of May 11, 2005. Id. (quoting Pub. L. No. 109-13,
§ 106(b), 119 Stat. at 311).
Other circuit courts of appeals have concluded that the changes made by the
REAL ID Act do not generally confer jurisdiction to review the denial of an
untimely asylum claim. See Ignatova v. Gonzales, No. 04-2473, 2005 WL
3454656, at *3 (8th Cir. Dec. 19, 2005); Ramadan v. Gonzales, 427 F.3d 1218,
1221-22 (9th Cir. 2005); Chacon-Botero v. U.S. Atty. Gen., 427 F.3d 954, 957
(11th Cir. 2005); Vasile v. Gonzales, 417 F.3d 766, 768 (7th Cir. 2005).
Analytically, the “the existence of ‘changed circumstances’ that materially affect
eligibility for asylum is a predominately factual determination, which will
invariably turn on the facts of a given case.” Ramadan, 427 F.3d at 1221-22.
The issue cannot be “shoehorn[ed] into the question of law category.” Vasile,
417 F.3d at 768. Unless petitioner somehow mounts a constitutional challenge to
the agency’s timeliness determination, the matter “continue[s] to fall outside the
jurisdiction of the court of appeals entertaining a petition for review.” Id.Like our sister circuits, we shall adhere to our prior interpretation of INA
§ 208(a)(3), 8 U.S.C. § 1158(a)(3). This court generally has no jurisdiction to
review a ruling that an alien “did not file his asylum application within the
applicable one-year deadline and did not show any circumstances excusing his
tardiness.” Tsevegmid, 336 F.3d at 1235. Under the REAL ID Act, however, a
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constitutional claim germane to the untimeliness of an asylum application may
overcome the jurisdictional bar.
The general rule is particularly apposite to Mr. Sadruddin’s case. On
appellate review, he has made no attempt to supply a basis for our jurisdiction.
Indeed, his principal brief does not even acknowledge the statutory bar of
§ 208(a)(3) and our interpretive holding in Tsevegmid. Although the Attorney
General’s responsive brief raised the issue, Mr. Sadruddin declined to file a reply
brief.
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III.
We are precluded from examining whether Mr. Sadruddin’s conversion to
Christianity amounted to changed or extraordinary circumstances excusing his
failure to file for asylum within one year after entry into the United States. It
follows, of course, that we cannot address the merits of his asylum application.
Because we lack jurisdiction over Mr. Sadruddin’s claim, the petition for review
is DISMISSED.
Entered for the Court
John C. Porfilio
Circuit Judge
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