Barite Koshe Burka v. Jefferson B. Sessions, III , 900 F.3d 575 ( 2018 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 17-2208
___________________________
Barite Koshe Burka
lllllllllllllllllllllPetitioner
v.
Jefferson B. Sessions, III, Attorney General of the United States
lllllllllllllllllllllRespondent
____________
Petition for Review of an Order of the
Board of Immigration Appeals
____________
Submitted: June 15, 2018
Filed: August 14, 2018
____________
Before KELLY, ARNOLD, and STRAS, Circuit Judges.
____________
STRAS, Circuit Judge.
Barite Koshe Burka challenges the denial of her untimely application for
asylum. Because we lack jurisdiction to review the BIA’s determination that Burka
did not establish an excuse for her late filing based on changed circumstances, we
dismiss her petition for review.
I.
Burka is a sixty-three-year-old woman who fears persecution by the Ethiopian
government because of her involvement in a local women’s group and her husband’s
status as a political dissident. She arrived in the United States on a temporary visa
in 2008, but her husband remained in Ethiopia, where he spent much of his time in
hiding. Burka eventually lost all contact with him.
In 2012, the Department of Homeland Security issued Burka a Notice to
Appear in removal proceedings. After conceding removability, Burka applied for
asylum, withholding of removal, and relief under the Convention Against Torture.
The government asked the immigration judge to deny asylum under 8 U.S.C.
§ 1158(a)(2)(B), which required Burka to file her application “within 1 year after
[she] arriv[ed] in the United States,” a deadline she indisputably missed. Burka
responded that her husband’s disappearance excused her late filing because it was a
“changed circumstance[] which materially affect[ed her] eligibility for asylum.” See
id. § 1158(a)(2)(D).
The immigration judge denied Burka’s asylum application under the one-year
statute of limitations but granted withholding of removal. In denying asylum, the
immigration judge reasoned that “[Burka], her brother, and her husband had all been
detained and harmed by the government in the past” and that her husband “was
already trying to hide from the government when [she] left Ethiopia. Thus, [Burka]
did not have new fears that might constitute a change in circumstances, but rather her
existing fears worsened.” The immigration judge then concluded, “[t]herefore, these
fears do not constitute a change in [Burka’s] circumstance[s] that would legally
excuse her filing delay.”
-2-
In dismissing Burka’s appeal, the Board of Immigration Appeals (the “BIA”)
relied on the immigration judge’s findings that Burka had “experienced past
persecution in Ethiopia, her husband and brother were also harmed, and she was not
prevented from filing an asylum application within 1 year of her entry into the United
States.” We review the BIA’s decision as the relevant final agency action, but
because “the BIA adopted the findings [and] reasoning of the [immigration judge],
we also review the [immigration judge’s] decision.” Matul-Hernandez v. Holder, 685
F.3d 707, 710–11 (8th Cir. 2012) (citation omitted).
II.
This case is about our appellate jurisdiction over asylum cases. The
Immigration and Nationality Act provides that “[n]o court shall have jurisdiction to
review any determination of the Attorney General under paragraph (2),” which
contains, as relevant here, the one-year statute of limitations for asylum applications
and its exceptions, including the one for changed circumstances on which Burka
relies. 8 U.S.C. § 1158(a)(3). The categorical language of this provision
notwithstanding, we may still review “constitutional claims or questions of law raised
upon a petition for review.” Id. § 1252(a)(2)(D). The issue, then, is whether this case
presents a reviewable constitutional claim or question of law or, alternatively,
whether Burka asks us to overturn a discretionary determination, something that is
beyond our jurisdiction to do.
The answer to the jurisdictional question depends on what the immigration
judge and the BIA actually decided. The immigration judge found that Burka feared
persecution long before her husband disappeared, because “she, her brother, and her
husband had all been detained and harmed by the government in the past” and her
husband “was already trying to hide from the government when [she] left Ethiopia.”
The BIA relied on these findings in dismissing Burka’s appeal. Though neither of
-3-
these decisions is a model of clarity, we understand them to be saying that Burka
already had strong preexisting fears of persecution based on the government’s
ongoing harassment of her husband. The disappearance of her husband, though
undoubtedly distressing, was just another incident in a pattern of events that had
already caused her to fear persecution, too similar to what she had already
experienced to be a material change in circumstances, which is what was required to
“legally excuse her filing delay.”
A materiality determination of this type is unreviewable under 8 U.S.C.
§ 1158(a)(3). See Goromou v. Holder, 721 F.3d 569, 579–80 (8th Cir. 2013).
Indeed, in Cambara-Cambara v. Lynch, we held that we lacked jurisdiction to review
a similar changed-circumstances argument based on an attack on the applicants’
father. 837 F.3d 822, 825 (8th Cir. 2016). In our view, the applicants’ argument that
the attack “provided further evidence of the type of persecution [they] already
suffered” amounted to nothing more than a “quarrel with the BIA’s discretionary
factual determination.” Id. (citation omitted). So too here, notwithstanding the fact
that Burka’s husband disappeared, rather than was attacked.1
To be sure, the immigration judge’s decision ventured close to deciding a
question of statutory interpretation by observing that “existing fears,” even if
“worsened,” “do not constitute a change in [Burka’s] circumstances that would
legally excuse her filing delay.” See Munoz-Yepez v. Gonzales, 465 F.3d 347, 351
1
The dissent’s position notwithstanding, whether an applicant for asylum
characterizes an event as a “worsening of the risk of persecution she will face” or as
“‘provid[ing] further evidence of the type of persecution already suffered’” makes no
difference in deciding whether a reviewable legal question is before us. Post at 6
(quoting Cambara-Cambara, 837 F.3d at 825). Either way, the changed
circumstances must be material, a determination that Cambara-Cambara says we
have no jurisdiction to review. 837 F.3d at 825.
-4-
(8th Cir. 2006) (holding that the interpretation of a statute presents a reviewable
question of law). Burka reads this language as adopting a categorical rule that a
worsening of existing fears can never meet the definition of “changed circumstances.”
Read in context, however, the immigration judge was making a case-specific
materiality determination, not announcing a per se rule. In observing that Burka’s
fears were not “new fears” and tying the decision to whether the facts gave rise to a
“legal[] excuse [for the] filing delay,” the immigration judge was explaining that
Burka’s fears already existed and that her husband’s disappearance did not make them
materially worse. The BIA’s order confirms this case-specific and discretionary
understanding of the immigration judge’s decision. In particular, the BIA rejected
Burka’s arguments with a discussion of the immigration judge’s factual findings, not
with abstract legal analysis. This brings us to perhaps the most crucial point: neither
the immigration judge nor the BIA engaged in an analysis of the statute or otherwise
elaborated on the meaning of “changed circumstances,” which forecloses the
possibility that this case presents a question of statutory interpretation for us to
review.
III.
Accordingly, we dismiss Burka’s petition for review.
KELLY, Circuit Judge, dissenting.
I respectfully dissent because I believe the court makes a factual finding that
the agency never made. I agree that any change in an asylum-seeker’s circumstances
must be material, see 8 U.S.C. § 1158(a)(2)(D), and that we lack jurisdiction to
review the agency’s materiality findings. See Cambara-Cambara v. Lynch, 837 F.3d
822, 825 (8th Cir. 2016). But, I do not think the immigration judge made a finding
-5-
as to whether the change in Burka’s circumstances was material. Rather, quoting the
immigration judge: “[Burka] did not have new fears that might constitute a change
in circumstances, but rather her existing fears worsened. Therefore, these fears do not
constitute a change in [her] circumstance that would legally excuse her filing delay.”
(Emphasis added). I would take the immigration judge at her word, and read her
opinion as resting on the erroneous legal premise that only new fears can qualify as
changed circumstances within the meaning of § 1158(a)(2)(D). I would therefore find
that this court has jurisdiction over Burka’s petition for review of this question of law.
Munoz-Yepez v. Gonzales, 465 F.3d 347, 351 (8th Cir. 2006) (issues of statutory
interpretation are questions of law); see also Bin Jing Chen v. Holder, 776 F.3d 597,
601 (8th Cir. 2015) (“We lack jurisdiction to review a determination that an
application for asylum is untimely, except when the petition seeks review of
constitutional claims or questions of law.” (cleaned up) (emphasis added)).
I also believe that Cambara-Cambara is distinguishable. In that case, the
petitioners’ father was attacked after he and other family members had previously
fallen victim to similar acts of violence. Cambara-Cambara, 837 F.3d at 824. The
petitioners argued that the attack on their father “qualifie[d] as changed circumstances
because it ‘provided further evidence of the type of persecution already suffered.’”
Id. at 825. Here, Burka does not argue that her husband’s disappearance is additional
evidence of the persecution she has already suffered. Rather, she asserts that her
husband’s disappearance is itself a changed circumstance—a material worsening of
the risk of persecution she will face if she returns to Ethiopia. And, in my view, the
mere fact that the immigration judge did not engage in extensive statutory analysis
does not make the statement at issue any less a conclusion of law. For these reasons,
I would grant the petition and remand this case to the agency for further proceedings.
______________________________
-6-