Liadov v. Mukasey ( 2008 )

COLLOTON, Circuit Judge,

concurring in part.

I conclude that the BIA’s decision whether to assert jurisdiction by certification pursuant to 8 C.F.R. § 1003.1(c) is committed to agency discretion by law, because there is “no law to apply.” See Heckler v. Chaney, 470 U.S. 821, 830, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985); Tamenut v. Mukasey, 521 F.3d 1000, 1005-06 (8th Cir.2008) (en banc) (per curiam); see also Mahamat v. Gonzales, 430 F.3d 1281, 1284 (10th Cir.2005); Saldana-German v. Ashcroft, 116 Fed.Appx. 927 (9th Cir.2004). I therefore agree with the ultimate conclusion reached in Parts I.B.2 and 3 of the opinion of the court. Insofar as Liadov seeks judicial review of the BIA’s refusal to certify his case, I would dismiss the petition for lack of jurisdiction. See ICC v. Brotherhood of Locomotive Eng’rs, 482 U.S. 270, 282, 107 S.Ct. 2360, 96 L.Ed.2d 222 (1987) (describing 5 U.S.C. § 701(a)(2) as a “limitation to the general grant of jurisdiction contained in 28 U.S.C. § 1331”). I agree with Part II of the opinion, concluding that Liadov’s due process claim is without merit, and I concur in the denial of the petition for review on that point.

I decline to join Part I.B.1 of the opinion, which states that the 30-day statutory time limit for filing an administrative appeal in an asylum case is not “jurisdictional” within the meaning of Bowles v. Russell, - U.S. -, 127 S.Ct. 2360, 2366, 168 L.Ed.2d 96 (2007). As in Holder v. Gonzales, 499 F.3d 825, 829 n. 1 (8th Cir.2007), it is unnecessary to decide that question, because the BIA has maintained steadfastly that the time limit is mandatory, and dismissed Liadov’s administrative appeal on that basis. The court’s analysis also strikes me as unconvincing. Congress in 1996 directed that the Attorney General establish a time limit for asylum appeals, with no mention of exceptions: “[A]ny administrative appeal shall be filed within 30 days of a decision granting or denying asylum.” 8 U.S.C. § 1158(d)(5)(A)(iv). Cf. Bowles, 127 S.Ct. at 2366 (“[W]hen an appeal has not been prosecuted in the manner directed, within the time limited by the acts of Congress, it must be dismissed for want of jurisdiction.”) (internal quotation omitted). That a congressional committee report, pertaining to legislation enacted by a different Congress six years earlier, expressed desire that the Attorney General establish a non-mandatory time limit gives little reason to doubt the mandatory language of the text of the 1996 statute. See Waterkeeper Alliance, Inc. v. EPA, 399 F.3d 486, 508 (2d Cir.2005) (“[P]rior legislative history is a hazardous basis for inferring the intent of a subsequent Congress.”). Nor does the fact that the Justice Department deems asylum applications also to be requests for withholding of removal, see 8 C.F.R. § 1208.3(b), principally to avoid duplication of effort, see Filing of Asylum Requests After Commencement or Completion of Deportation Proceedings, 43 Fed.Reg. 40879 (proposed Sept. 13, 1978), make it illogical for Congress in 1996 to have enacted a limitation on the agency’s jurisdiction with respect only to the timing of asylum appeals. Congress need not address all problems at once. And it is not implausible that Congress may have wanted the Attorney General to retain greater flexibility in fashioning regulatory time limits applicable to aliens who purport to meet the higher standard for withholding of removal. I would therefore leave this question for a case in which it is necessary to the decision.