Jimenez Viracacha, A v. Mukasey, Michael B. ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1548
ARMANDO JIMÉNEZ VIRACACHA, et al.,
Petitioners,
v.
MICHAEL B. MUKASEY, Attorney General
of the United States,
Respondent.
____________
Petition for Review of an Order of the
Board of Immigration Appeals.
____________
ARGUED DECEMBER 7, 2007—DECIDED MARCH 3, 2008
____________
Before EASTERBROOK, Chief Judge, and MANION and
KANNE, Circuit Judges.
EASTERBROOK, Chief Judge. Armando Jiménez Viracacha
arrived in the United States from Colombia in Decem-
ber 1998 with a visitor’s visa authorizing a six-month
stay. He did not leave when the visa expired. In Decem-
ber 2000 his wife and three children arrived, also holding
visitors’ visas. They did not leave either. Jiménez sought
asylum in 2002 for himself and his family. There is, how-
ever, a one-year deadline for requesting asylum, see
8 U.S.C. §1158(a)(2), and Jiménez’s application was filed
2 No. 07-1548
almost three years late. Immigration officials have the
authority to allow untimely claims if the delay is justi-
fied by changed circumstances, see §1158(a)(2)(D), 8
C.F.R. §1208.4(a), but the decision whether a change has
occurred is committed to agency discretion. 8 U.S.C.
§1158(a)(3).
An immigration judge concluded that Jiménez had not
established “the existence of changed circumstances
which materially affect the applicant’s eligibility for
asylum”, §1158(a)(2)(D). He argued that he fears the
Revolutionary Armed Forces of Colombia (FARC), an
insurgent group that threatened him with death after he
opposed its operations. But because he told the immigra-
tion judge that he had left Colombia in 1998 precisely
because of the FARC’s threats, the IJ found that he
should have applied for asylum immediately on arriving
in the United States. Jiménez testified that he delayed
because he expected the domestic situation in Colombia
to improve, but that it had instead (in his view) become
worse. The IJ did not see this as an adequate justification,
both because conditions in Colombia had not changed
materially and because hoping for improvement does
not justify delay in filing.
A possibility that Jiménez does not mention—that he
waited until his family had reached the United States,
lest his application embarrass the family’s claim to be
tourists who planned to return to Colombia within six
months—cannot be ruled out, but it would not justify an
exception to the one-year time limit. Jiménez also main-
tained that he had not understood the asylum process
until recently, but the IJ did not see this as the sort of
“extraordinary circumstances” that permits a late filing
under §1158(a)(2)(D) even when country conditions have
No. 07-1548 3
not changed materially. The IJ did, however, grant the
family’s request for withholding of removal on the
ground that they would be in danger from the FARC
should they return to Colombia while that nation’s civil
unrest continues.
Jiménez and his family appealed to the Board of Immi-
gration Appeals, which endorsed the IJ’s decision. Next
they filed a petition for review in this court, precip-
itating a series of jurisdictional questions.
The first is whether the BIA’s decision is “final,” a
condition of our jurisdiction under 8 U.S.C. §1252(a)(1).
After resolving the Jiménez family’s appeal, the Board
remanded to the IJ under 8 C.F.R. §1003.1(d)(6) for a
background check to ensure eligibility for withholding
of removal. The Attorney General contends that this
remand makes the BIA’s order non-final—and he adds
that, because the family did not appeal to the Board
from the IJ’s order in September 2007 confirming its
entitlement to withholding of removal, judicial review
is now impossible.
Yet how could the Jiménez family appeal to the Board
from a favorable decision? (Recall that the only ques-
tion the Board instructed the IJ to consider was whether
the family remained eligible for withholding of removal.)
The Attorney General’s position leaves the aliens trapped:
They can’t seek judicial review of the asylum question
because the Board’s order is non-final, and they can’t seek
review of the IJ’s decision because it is favorable. This
situation is common in administrative law when a court
(or appellate body of an agency) remands for considera-
tion of a question different from the one on which judicial
review is sought. The normal rule is that the original
decision on the only question open to judicial review is
4 No. 07-1548
“final.” See, e.g., Forney v. Apfel, 524 U.S. 266 (1998) (col-
lecting authority). This is an approach that we have ap-
plied to immigration proceedings. Take, for example,
Zahren v. Gonzales, 487 F.3d 1039 (7th Cir. 2007), in which
the Board affirmed the IJ’s removal order but remanded
so that the IJ could decide whether to allow the aliens
the privilege of voluntary departure. We concluded
that this is a “final” order because the only question with-
in the judicial ken—whether the record supported an
order of removal—had been conclusively resolved. Every-
thing that remained was a matter of administrative dis-
cretion. Just so here.
Section 1252(a)(1) specifies, as the reviewable action,
not simply a “final” order of the Board, but a “final order
of removal” (emphasis added). We asked the parties
whether such an order exists—whether there is even a
controversy within the scope of Article III. After all, the
IJ allowed the aliens to remain in the United States by
granting withholding of removal. How is an order pro-
viding that the aliens will not be removed a “final order
of removal”? And what difference does it make whether
the reason why the aliens remain in the United States is
a grant of asylum or a decision by the agency to with-
hold removal? Either way the aliens remain, which is
their goal. Where’s the controversy? The judicial branch
reviews an agency’s decision adverse to an applicant,
not an agency’s statement of reasons for a decision favor-
able to an applicant.
There is a statutory answer to the question “how can
a decision to withhold removal be a final order of re-
moval?” A definitional clause in the statute says that an
“order of deportation” (which since 1996 is the same thing
as an “order of removal”) means an order of the agency
No. 07-1548 5
“concluding that the alien is deportable or ordering
deportation.” 8 U.S.C. §1101(a)(47)(A) (emphasis added).
The IJ and Board did not “order” the Jiménez family’s
removal, but they did find the family’s members “remov-
able”. The family conceded as much: they are citizens
of Colombia and lack visas authorizing continuing pres-
ence in the United States. Any order withholding re-
moval supposes that the alien is “removable”. See
Guevara v. Gonzales, 472 F.3d 972, 976 (7th Cir. 2007); Blagaic
v. Flagg, 304 F.2d 623 (7th Cir. 1962). The IJ could have
avoided any uncertainty by entering a formal order
of removal and then staying its effect by granting the
petition to withhold removal, but the absence of this
paperwork is not dispositive.
As for the Article III issue: there are enough differences
between asylum and withholding of removal to yield a
live controversy. One difference is that holders of asylum
are entitled to remain in the United States until condi-
tions in their home countries improve or the risk of perse-
cution otherwise declines. Withholding of removal, by
contrast, confers not a privilege to remain in the United
States but only an immunity against removal to a partic-
ular country. See 8 C.F.R. §1208.16(f). An alien still may
be removed to any other nation on the list in 8 U.S.C.
§1231(b) that is willing to accept him. Another difference
is that persons who have been granted asylum may
leave the United States and return, while withholding
of removal does not permit reentry into this country. Any
member of the Jiménez family who leaves the United
States will not be allowed back. See 8 C.F.R. §1241.7.
Yet another difference is that aliens in asylum status
eventually may become permanent residents. 8 C.F.R.
§209.2. Withholding of removal confers no such opportu-
6 No. 07-1548
nity. There are more differences, but these three are enough
to show that asylum status is more valuable to an alien
than withholding of removal, so a real controversy is
presented by the Jiménez family’s petition for judicial
review.
This is as far as we can go, however, because the IJ and
BIA enforced against Jiménez the one-year limit on apply-
ing for asylum. Section 1158(a)(2) allows the agency to
accept untimely applications under certain circum-
stances, but “[n]o court shall have jurisdiction to review
any determination of the [agency] under paragraph (2).”
8 U.S.C. §1158(a)(3). To this exception §1252(a)(2)(D) adds
a proviso: “constitutional claims or questions of law”
remain reviewable. Jiménez and his family contend that
the IJ and BIA erred on a question of law. But both the
Board and the IJ stated with precision the rules for ex-
ceptions to the one-year deadline. The IJ found that
Jiménez had deliberately refrained from making a
timely application for asylum, and that any change in
conditions in Colombia since then is not material. The
first is a conclusion of fact and the second is an applica-
tion of law to fact; neither rests on or reflects a legal
mistake.
Petitioners’ position boils down to the contention that
every error an agency can make is in the end one of
“law”—if, for example, it makes a decision unsupported
by substantial evidence, that’s an error of law because
the law requires agencies to found their decisions on
substantial evidence. If this is so, however, then §1158(a)(3)
and similar provisions, such as §1252(a)(2)(A), (B), and (C),
have been erased from the statute books. They never
have any force; the proviso in subsection (D) covers every
case. That can’t be right—courts don’t read one statute to
No. 07-1548 7
obliterate others, unless there is no way to make them co-
exist—and we have held that it is not right, for §1158(a)(3)
and §1252(a)(2)(D) in particular. We have dismissed
petitions because of §1158(a)(3), see, e.g., Kaharudin v.
Gonzales, 500 F.3d 619 (7th Cir. 2007); Nigussie v. Ashcroft,
383 F.3d 531 (7th Cir. 2004); Vladimirova v. Ashcroft, 377
F.3d 690, 695 (7th Cir. 2004), and have held that the
proviso in §1252(a)(2)(D) is limited to “pure” questions
of law—situations in which a case comes out one way if
the Constitution or statute means one thing, and the other
way if it means something different. See Cevilla v. Gonzales,
446 F.3d 658 (7th Cir. 2006); Leguizamo-Medina v. Gonzales,
493 F.3d 772 (7th Cir. 2007).
The Jiménez family asks us to reconsider Cevilla in light
of later decisions in other circuits. The family relies particu-
larly on Xiao Ji Chen v. Department of Justice, 471 F.3d
315, 329-30 (2d Cir. 2006), and Ramadan v. Gonzales, 479
F.3d 646 (9th Cir. 2007), which it says allow a court of
appeals to review the agency’s application to a given
situation of a law whose meaning is not contested. The
aliens also suggested that the Supreme Court might say
something in Ali v. Achim, 468 F.3d 462 (7th Cir. 2006),
cert. granted, 128 S. Ct. 29 (2007), that would bear on this
subject. The writ of certiorari in Ali has been dismissed on
the parties’ stipulation, however, so there is no need to
wait further. Nor need we spend time on Xiao Ji Chen; the
second circuit has since demonstrated that it agrees
with Cevilla, any dicta in Xiao Ji Chen to the contrary
notwithstanding. See Gui Yin Liu v. INS, 508 F.3d 716 (2d
Cir. 2007). That leaves only the ninth circuit’s opinion in
Ramadan.
The panel in Ramadan held that §1252(a)(2)(D) authorizes
judicial review of all “mixed questions of law and fact”,
8 No. 07-1548
including all applications of law to fact. Only pure find-
ings of fact are outside the scope of subsection (D), the
panel concluded. Because no administrative case can be
decided without applying some law to some facts, that
understanding of §1252(a)(2)(D) vitiates all clauses in the
statute, including §1158(a)(3), that limit judicial review
of particular classes of decisions. Here, for example, the
IJ had to decide whether any change of conditions in
Colombia is “material,” the sort of question that the
Supreme Court treats as one of fact. See United States v.
Gaudin, 515 U.S. 506 (1995). Cf. Pullman-Standard v. Swint,
456 U.S. 273 (1982); Icicle Seafoods, Inc. v. Worthington, 475
U.S. 709 (1986). The panel in Ramadan conceded that
§1252(a)(2)(D) does not say that “mixed” or “ultimate”
questions are reviewable—and, as we noted in Cevilla,
the legislative history of §1252(a)(2)(D) is incompatible
with extending that proviso beyond pure questions of
law—but adopted its interpretation to avoid any need to
consider constitutional objections to §1252(a)(2)(D).
It is hard to appreciate what those objections might be;
the Constitution itself allows Congress to create excep-
tions to the jurisdiction of the federal courts. Provisions
foreclosing judicial review of particular administrative
decisions are common. The most famous such exclusion
is in the Administrative Procedure Act of 1946, 5 U.S.C.
§701(a)(2) (decisions “committed to agency discretion by
law” are not judicially reviewable), and to our knowl-
edge no serious argument has ever been made that
§701(a)(2) is unconstitutional. The Supreme Court has
applied it repeatedly without a single Justice expressing
doubt about its validity (though there is often debate about
whether a given question has been so “committed”). See,
e.g., Lincoln v. Vigil, 508 U.S. 182 (1993); Heckler v. Chaney,
470 U.S. 821 (1985). Given the preservation of legal and
No. 07-1548 9
constitutional claims in §1252(a)(2)(D), the preclusive
effect of §1158(a)(3) is less sweeping than that of the
APA. The use that the panel in Ramadan was able to make
of the “canon of avoiding constitutional questions” shows
why many thoughtful people think the canon a bad
one—for constitutional questions lurk everywhere, and
judges who seek to avoid them can end up rewriting
statutes that would be deemed perfectly valid if the
question were faced and resolved. See Henry J. Friendly,
Benchmarks 210 (1967); William K. Kelley, Avoiding Con-
stitutional Questions as a Three-Branch Problem, 86 Cornell
L. Rev. 831 (2001).
Nine judges dissented from the denial of rehearing
en banc in Ramadan. 504 F.3d 973 (2007). Judge
O’Scannlain’s opinion for this group covers all that need
be said about the panel’s decision. He points out not only
some of the problems that we have mentioned, but also
the fact that the ninth circuit stands alone: at least eight
circuits read §1252(a)(2)(D) as limited to pure questions
of law. (Judge O’Scannlain counted only seven; he missed
our opinions in Cevilla and Leguizamo-Medina.) The opin-
ion for the three-judge panel in Ramadan does not per-
suade us that Cevilla should be overruled; instead Judge
O’Scannlain’s opinion for nine judges persuades us that
Cevilla should not be disturbed.
Section 1158(a)(3) says that we lack jurisdiction. Section
1252(a)(2)(D) does not restore jurisdiction when, as in
this case, the governing rules of law are undisputed. The
aliens’ remaining arguments have been considered but
do not require discussion. The petition for review is
dismissed for want of jurisdiction.
USCA-02-C-0072—3-3-08