Morshed Alam v. Merrick Garland ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MORSHED ALAM, No. 19-72744
Petitioner,
Agency No.
v. A215-826-397
MERRICK B. GARLAND, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted En Banc July 12, 2021*
Pasadena, California
Filed September 8, 2021
Before: Sidney R. Thomas, Chief Judge, and Johnnie B.
Rawlinson, Consuelo M. Callahan, Milan D. Smith, Jr.,
Mary H. Murguia, Morgan Christen, Paul J. Watford,
Andrew D. Hurwitz, Michelle T. Friedland, Mark J.
Bennett, and Daniel A. Bress, Circuit Judges.
Opinion by Chief Judge Thomas;
Concurrence by Judge Bennett
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 ALAM V. GARLAND
SUMMARY**
Immigration
The en banc court overruled prior Ninth Circuit precedent
establishing and applying the single factor rule, which
required the court to sustain an adverse credibility
determination from the Board of Immigration Appeals, so
long as one of the agency’s identified grounds was supported
by substantial evidence.
An immigration judge denied Morshed Alam’s asylum
and withholding application on adverse credibility grounds,
identifying seven reasons to support the credibility
determination. The government argued before this court that
the credibility determination was supported by just two of the
seven grounds. A divided three-judge panel denied the
petition for review in a non-precedential memorandum
disposition, relying on only one of the seven grounds to
conclude that the IJ’s adverse credibility determination was
supported by substantial evidence. Judge Collins dissented,
disagreeing that substantial evidence supported the IJ’s
adverse credibility determination and criticizing this circuit’s
single factor rule. In considering the petition for rehearing en
banc, the panel requested that the parties provide
supplemental briefing as to whether there is a conflict
between the single factor rule and the REAL ID Act. Both
parties agreed that the single factor rule could not be
reconciled with the REAL ID Act.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ALAM V. GARLAND 3
The en banc court recounted the origin of the single factor
rule, which was rooted in the pre-REAL ID Act requirement
that an adverse credibility finding had to rest on at least one
ground that went “to the heart of the claim” to be sustained on
review. Prior to enactment of the REAL ID Act, this circuit
held that minor discrepancies, inconsistencies, or omissions
that did not go to the heart of an applicant’s asylum claim
could not constitute substantial evidence in support of an
adverse credibility finding. This circuit further held that it
was required to sustain an adverse credibility finding in an
asylum case, so long as one of the agency’s identified
grounds was supported by substantial evidence and went to
the heart of the claim. Thus, before the REAL ID Act, the
outcome of a petitioner’s challenge to the agency’s adverse
credibility finding depended entirely on whether the agency
had cited at least one valid, individual ground going to the
heart of the claim. If such a ground was absent, this court
could not sustain the finding; if it was present, it was required
to do so.
The REAL ID Act eliminated the “heart of the claim”
requirement and required IJs to consider all factors under the
totality of the circumstances in assessing credibility. The en
banc court wrote that although this circuit has recognized that
the REAL ID Act eliminated the “heart of the claim”
requirement, it has continued to adhere to the formulation that
sustaining an adverse credibility finding is required if
substantial evidence supports a single factor in the adverse
credibility analysis. The en banc court explained that by
clinging to one half of an abrogated rule out of context, this
circuit has been affirming a conclusion that, in most cases,
the IJ would not have made in the first place: that a single
factor suffices on its own for an adverse credibility
determination. Observing that no sister circuits have applied
4 ALAM V. GARLAND
the single factor rule post-REAL ID Act, and given the REAL
ID Act’s explicit statutory language requiring consideration
of the “totality of the circumstances” and “all relevant
factors,” the court concluded that the REAL ID Act
effectively abrogated the single factor rule. The en banc
court wrote that there is no bright-line rule under which some
number of inconsistencies requires sustaining or rejecting an
adverse credibility determination. Rather, review will always
require assessing the totality of the circumstances. Thus, to
the extent that Ninth Circuit precedents employed the single
factor rule or are otherwise inconsistent with this standard,
the court overruled those cases. The court remanded the case
to the three-judge panel to re-examine the petition for review
in light of its clarification of the standard for reviewing the
Board’s adverse credibility determinations.
Concurring, Judge Bennett agreed with the en banc
court’s opinion and judgment holding that the single factor
rule conflicts with the REAL ID Act. Judge Bennett wrote
separately to highlight other judge-made rules that are a part
of Ninth Circuit jurisprudence, which, given the decision in
this case, and the Supreme Court’s decisions in Garland v.
Ming Dai, 141 S. Ct. 1669 (2021), and United States v.
Palomar-Santiago, 141 S. Ct. 1615 (2021), may warrant
reconsideration en banc, including:
(1) United States v. Gonzalez-Villalobos, 724 F.3d 1125(9th Cir. 2013) (recognizing exceptions to the exhaustion
requirements of 8 U.S.C. § 1326(d) where an individual
is deprived of his right to appeal to the Board). Judge
Bennett wrote that the en banc court should consider
whether these exceptions conflict with the Supreme
Court’s decision in Palomar-Santiago, which held that
each of the requirements of § 1326(d) is mandatory;
ALAM V. GARLAND 5
(2) Singh v. Holder, 643 F.3d 1178 (9th Cir. 2011) (a pre-
REAL ID Act case setting forth a categorical rule that a
petitioner’s lie always counts as substantial evidence for
an adverse credibility finding, except in the narrow
exception set forth Akinmade v. INS, 196 F.3d 951 (9th
Cir. 1999)). In Akinmade, this circuit held that a
petitioner’s lie is not necessarily probative of credibility
if the petitioner lied to enter the United States and escape
persecution. Judge Bennett wrote that the en banc court
should consider whether there is a reason to limit
consideration of the circumstances surrounding the
petitioner’s lie to only cases that fall within the Akinmade
exception, or whether the court should decide whether a
petitioner’s lie constitutes substantial evidence by looking
at the totality of the circumstances in every case, as the
INA directs in 8 U.S.C. § 1158(b)(1)(B)(iii);
(3) Mamigonian v. Biggs, 710 F.3d 936 (9th Cir. 2013)
(interpreting the jurisdiction-stripping provision of
§ 1252(a)(2)(B)(i), which states that “no court shall have
jurisdiction to review . . . any judgment regarding the
granting of relief under section 1182(h), 1182(i), 1229b,
1229c, or 1255 of this title,” to apply only to agency
determinations made on discretionary grounds). Judge
Bennett wrote that the en banc court should consider
whether limiting the jurisdiction stripping provision to
discretionary grounds ignores Congressional intent and is
at odds with the plain language of the statute, which states
“no court shall have jurisdiction to review . . . any
judgment” regarding the grant of relief pursuant to the
specified provisions;
(4) Singh v. Holder, 656 F.3d 1047 (9th Cir. 2011)
(concluding for purposes of the extraordinary
6 ALAM V. GARLAND
circumstances exception to the one-year asylum time bar,
8 U.S.C. § 1158(a)(2)(D), and 8 C.F.R. § 1208.4(a)(5),
that a filing delay of less than six months after an
applicant’s nonimmigrant status has expired is
presumptively reasonable). Judge Bennett wrote that the
presumption as to the reasonableness of a filing delay of
less than six months is based on flawed logic, explaining
that the regulation’s statement that a delay of six months
or more clearly is not reasonable does not mean that the
converse is also true, i.e., that a delay of less than six
months presumptively is—especially when the regulation
itself states that shorter delays should be “considered on
a case-by-case basis, with the decision-maker taking into
account the totality of the circumstances.”
COUNSEL
Mate Jurkovic and Chelsey Noelle Kelso, Goldstein &
Associates LLC, Pittsburgh, Pennsylvania, for Petitioner.
Brian M. Boynton, Acting Assistant Attorney General;
John W. Blakeley, Assistant Director; Greg D. Mack, Senior
Litigation Counsel; Elizabeth K. Fitzgerald-Sambou, Trial
Attorney; Office of Immigration Litigation, Civil Division,
United States Department of Justice, Washington, D.C.; for
Respondent.
ALAM V. GARLAND 7
OPINION
THOMAS, Chief Judge:
We voted to rehear this case en banc to reconsider our
“single factor rule,” which we have applied in considering
petitions for review from decisions by the Board of
Immigration Appeals (“BIA”). The single factor rule, as we
have applied it, requires us to sustain an adverse credibility
finding if “one of the [agency’s] identified grounds is
supported by substantial evidence.” Wang v. INS, 352 F.3d
1250, 1259 (9th Cir. 2003).
On rehearing en banc, we hold that the single factor rule
conflicts with the REAL ID Act of 2005, Pub. L. No. 109-13,
119 Stat. 231 (2005), and we overrule our prior precedent
establishing and applying it. We remand this case to the
three-judge panel to re-examine the petition for review in
light of our clarification of the standard for reviewing the
BIA’s adverse credibility determinations.
I
Morshed Alam, a Bangladeshi citizen, petitions for
review of the BIA decision denying his applications for
asylum and withholding of removal. Alam sought relief
based on his father’s membership in one of the country’s
opposition political parties. The immigration judge (“IJ”)
denied his application, making an express adverse credibility
determination. The IJ identified seven reasons supporting the
adverse credibility finding. However, the IJ also held that,
absent that finding, Alam would be entitled to a grant of
asylum. On appeal, the BIA adopted and affirmed the IJ’s
8 ALAM V. GARLAND
decision pursuant to Matter of Burbano, 20 I. & N. Dec. 872(BIA 1994).
Alam filed a petition for review arguing, inter alia, that
the IJ’s adverse credibility determination was not supported
by substantial evidence. Alam did not challenge the single
factor rule. In response, the United States argued that the
BIA’s adverse credibility determination was supported by just
two of the seven grounds that the IJ had cited, and that
application of the single factor rule required sustaining the
adverse credibility finding.
A divided three-judge panel denied the petition for review
in a non-precedential memorandum disposition. Alam v.
Barr, 837 F. App’x 424 (9th Cir. 2020). It concluded that the
IJ’s adverse credibility determination was supported by
substantial evidence, relying on only one of the seven
grounds. Id. at 425–26. Judge Collins dissented, disagreeing
that substantial evidence supported the IJ’s adverse credibility
determination and criticizing our Circuit’s single factor rule.
Id. at 427–29 (Collins, J., dissenting).
In considering the petition for rehearing en banc, we
requested that the parties provide supplemental briefing as to
whether there is a conflict between a single factor rule and the
REAL ID Act. Both parties agreed that our single factor rule
could not be reconciled with the REAL ID Act. We
subsequently voted to rehear the case en banc. Because the
BIA affirmed on the basis of Matter of Burbano, we review
the IJ’s decision as if it were the BIA’s decision. See Kwong
v. Holder, 671 F.3d 872, 876 (9th Cir. 2011).
ALAM V. GARLAND 9
II
The single factor rule is rooted in our pre-REAL ID Act
requirement that an adverse credibility finding had to rest on
at least one ground that went “to the heart of the claim” to be
sustained on review. Prior to enactment of the REAL ID Act,
we concluded that “minor discrepancies, inconsistencies, or
omissions that d[id] not go to the heart of an applicant’s
asylum claim [could not] constitute substantial evidence” in
support of an adverse credibility finding. Chen v. INS,
266 F.3d 1094, 1098 (9th Cir. 2001), judgment vacated on
other grounds sub nom. INS v. Chen, 537 U.S. 1016 (2002);
see also Ceballos-Castillo v. INS, 904 F.2d 519, 520 (9th Cir.
1990) (distinguishing incidental misstatements from
misstatements that went to the heart of the petitioner’s claim).
We elaborated on that rule in Wang, holding that we were
required to sustain an adverse credibility finding in an asylum
case, “[s]o long as one of the [agency’s] identified grounds
[wa]s supported by substantial evidence and [went] to the
heart of [the] claim.” Wang, 352 F.3d at 1259; see also Li v.
Ashcroft, 378 F.3d 959, 964 (9th Cir. 2004) (“Although some
of the factors the IJ relied upon are either unsupported or
irrelevant, ‘[s]o long as one of the identified grounds is
supported by substantial evidence and goes to the heart of
[Li’s] claim of persecution, we are bound to accept the IJ’s
adverse credibility finding.’” (alterations in original) (quoting
Wang, 352 F.3d at 1259)). Before the REAL ID Act, the
outcome of a petitioner’s challenge to the agency’s adverse
credibility finding depended entirely on whether the agency
had cited at least one valid, individual ground going to the
heart of the claim. If such a ground was absent, we could not
sustain the finding; if it was present, we were required to do
so.
10 ALAM V. GARLAND
The REAL ID Act eliminated the “heart of the claim”
requirement and required IJs to consider all factors under the
totality of the circumstances in assessing credibility.
Specifically, it provided that:
Considering the totality of the circumstances,
and all relevant factors, a trier of fact may
base a credibility determination on the
demeanor, candor, or responsiveness of the
applicant or witness . . . , the consistency
between the applicant’s or witness’s written
and oral statements . . . , and any inaccuracies
or falsehoods in such statements, without
regard to whether an inconsistency,
inaccuracy, or falsehood goes to the heart of
the applicant’s claim, or any other relevant
factor.
8 U.S.C. § 1158(b)(1)(B)(iii) (emphases added).
In sum, under the REAL ID Act, credibility
determinations are made—and must be reviewed—based on
the “totality of the circumstances and all relevant factors,” not
a single factor. Thus, the REAL ID Act effectively abrogated
Wang’s contrary holding that an adverse credibility finding is
supported by substantial evidence if it is supported by a single
ground that goes to the heart of the claim. See Shrestha v.
Holder, 590 F.3d 1034, 1043 (9th Cir. 2010) (“The REAL ID
Act implemented an important substantive change concerning
the kinds of inconsistencies that may give rise to an adverse
credibility determination. Inconsistencies no longer need to
‘go to the heart’ of the petitioner’s claim to form the basis of
an adverse credibility determination.” (quoting
§ 1158(b)(1)(B)(iii))).
ALAM V. GARLAND 11
Although we recognized that the REAL ID Act eliminated
Wang’s “heart of the claim” requirement, we have continued
to adhere to the second part of Wang’s formulation, namely,
that sustaining an adverse credibility finding is required if
substantial evidence supports a single factor in the adverse
credibility analysis. See, e.g., Qiu v. Barr, 944 F.3d 837, 842
(9th Cir. 2019); Singh v. Lynch, 802 F.3d 972, 976 n.2 (9th
Cir. 2015); Jiang v. Holder, 754 F.3d 733, 738–39 (9th Cir.
2014). We have also relied on the single factor rule in
countless non-precedential decisions. By clinging to one half
of an abrogated rule out of context, we have been affirming
a conclusion that, in most cases, the IJ would not have made
in the first place: that a single factor suffices on its own for an
adverse credibility determination.
None of our sister circuits have applied the single factor
rule post-REAL ID Act. Rather, they have applied
the totality of the circumstances standard.1
1
See, e.g., Jabri v. Holder, 675 F.3d 20, 24–26 (1st Cir. 2012)
(remanding when one of three grounds for the adverse credibility
determination was valid because substantial evidence did not support the
overall credibility determination); Gao v. Sessions, 891 F.3d 67, 79–82 (2d
Cir. 2018) (remanding when some but not all of the grounds for the
adverse credibility determination were valid because substantial evidence
did not support the overall credibility determination); Alimbaev v. Att’y
Gen. of United States, 872 F.3d 188, 196 (3d Cir. 2017) (“[W]e will . . .
uphold [the agency’s adverse credibility] findings to the extent that they
are supported by reasonable, substantial, and probative evidence on the
record considered as a whole.” (internal quotation marks omitted)); Lin v.
Holder, 736 F.3d 343, 351 (4th Cir. 2013) (“Even the existence of only a
few such inconsistencies can support an adverse credibility
determination.” (emphasis added)); Suate-Orellana v. Barr, 979 F.3d
1056, 1060 (5th Cir. 2020) (“We defer to the agency’s credibility
determination unless, from the totality of the circumstances, it is plain that
no reasonable fact-finder could make such an adverse credibility ruling.”
12 ALAM V. GARLAND
Given the REAL ID Act’s explicit statutory language, we
join our sister circuits and hold that, in assessing an adverse
credibility finding under the Act, we must look to the “totality
of the circumstances[] and all relevant factors.”
§ 1158(b)(1)(B)(iii). There is no bright-line rule under which
some number of inconsistencies requires sustaining or
rejecting an adverse credibility determination—our review
will always require assessing the totality of the
(internal quotation marks omitted)); Slyusar v. Holder, 740 F.3d 1068,
1075 (6th Cir. 2014) (“Although the credibility determination no longer
includes a requirement that the inconsistency be material to the asylee’s
claim, we urge courts to remember that any inconsistencies or inaccuracies
must always be considered in light of the ‘totality of the circumstances.’
8 U.S.C. § 1158(b)(1)(B)(iii).”); Cojocari v. Sessions, 863 F.3d 616, 626
(7th Cir. 2017) (remanding where the agency’s adverse credibility finding
cited some valid grounds but “emphasized many other trivial matters that
d[id] not have a plausible bearing on [the petitioner’s] credibility” such
that the court had “no confidence that the [immigration] judge would have
reached the same adverse decision if she had focused on the one or two
details that might actually matter”); Li v. Holder, 745 F.3d 336, 341 (8th
Cir. 2014) (considering and rejecting an argument that “the BIA failed to
evaluate [the petitioner’s] credibility under the totality of the
circumstances” by discussing the multiple material inconsistencies the IJ
identified); Uanreroro v. Gonzales, 443 F.3d 1197, 1210–11 (10th Cir.
2006) (“When making a credibility determination, the IJ is required to
consider the totality of the circumstances . . . . [W]hile it was appropriate
for the IJ to consider [the petitioner’s untruthful] statements upon entry as
a factor in its credibility determination, it does not alone rise to the level
of substantial evidence to support an adverse decision on her claims for
relief.” (internal quotation marks omitted)); Wu v. U.S. Att’y Gen.,
712 F.3d 486, 494–98 (11th Cir. 2013) (remanding when one of the
grounds for the adverse credibility determination was valid because
substantial evidence did not support the overall credibility determination,
and observing that one “tangential inconsistency, standing alone and
considered in the totality of the circumstances, is insufficient to serve as
the sole basis for the IJ’s finding that Wu is without credibility” (internal
quotation marks omitted)).
ALAM V. GARLAND 13
circumstances. To the extent that our precedents employed
the single factor rule or are otherwise inconsistent with this
standard, we overrule those cases.
We remand this case to the three-judge panel for
reconsideration in light of the newly articulated standard for
reviewing adverse credibility determinations.
REMANDED to the three-judge panel.
BENNETT, Circuit Judge, concurring:
I concur in the court’s opinion and judgment holding “that
the single factor rule conflicts with the REAL ID Act of
2005.” Opinion at 7. I write separately to highlight other
judge-made rules that are a part of our jurisprudence, which,
given our decision today and the Supreme Court’s decisions
in Garland v. Ming Dai, 141 S. Ct. 1669 (2021), and United
States v. Palomar-Santiago, 141 S. Ct. 1615 (2021), we may
want to revisit en banc.1
1. In Palomar-Santiago, the Supreme Court reversed our
rule that excused defendants from satisfying the first two
1
I note also that the rules I highlight below are potential candidates
for reconsideration by three-judge panels pursuant to the directive of our
en banc court in Miller v. Gammie, 335 F.3d 889, 899–900 (9th Cir. 2003)
(en banc).
14 ALAM V. GARLAND
requirements of 8 U.S.C. § 1326(d)2 “if they were ‘not
convicted of an offense that made [them] removable.’”
141 S. Ct. at 1620 (alteration in original) (quoting United
States v. Ochoa, 861 F.3d 1010, 1015 (9th Cir. 2017)). In so
doing, the Court held “that each of the statutory requirements
of § 1326(d) is mandatory.” Id. at 1622.
Our controlling law holds “that where an alien is deprived
of his right to appeal to the BIA, he satisfies both
[§ 1326](d)(1) and (d)(2).” United States v. Gonzalez-
Villalobos, 724 F.3d 1125, 1130 (9th Cir. 2013).
The cases in which we have determined that
§ 1326(d)(1) and (d)(2) were satisfied can be
divided into three overlapping categories.
First, we have held that § 1326(d)(1) and
(d)(2) are satisfied when the IJ failed to
inform the alien that he had a right to appeal
his deportation order to the BIA. Second, we
have held that an IJ’s failure to inform the
2
Section 1326(d) provides that:
In a criminal proceeding under this section, an alien
may not challenge the validity of the deportation order
described in subsection (a)(1) or subsection (b) unless
the alien demonstrates that—
(1) the alien exhausted any administrative remedies that
may have been available to seek relief against the order;
(2) the deportation proceedings at which the order was
issued improperly deprived the alien of the opportunity
for judicial review; and
(3) the entry of the order was fundamentally unfair.
ALAM V. GARLAND 15
alien that he is eligible for a certain type of
relief also satisfies § 1326(d)(1) and (d)(2),
because an alien who is not made aware of his
or her apparent eligibility for relief has had no
meaningful opportunity to appeal the removal
and seek such relief. . . . Third, when an alien
has waived his right to appeal to the BIA, he
can nevertheless satisfy § 1326(d)(1) and
(d)(2) by showing that his waiver was not
considered and intelligent.
Id. at 1130–31 (quotation marks and citations omitted).
In each circumstance described above, we created an
exception to the exhaustion requirement delineated in
§ 1326(d)(1). This appears to conflict with the Supreme
Court’s Palomar-Santiago decision. See 141 S. Ct. at 1622.
Indeed, in Zamorano v. Garland, 2 F.4th 1213 (9th Cir.
2021), we remarked that Palomar-Santiago “casts doubt on
the continued vitality of our exhaustion excusal rule” where
an IJ fails to inform an alien of his right to appeal. Id.
at 1225. And in United States v. Bastide-Hernandez, 3 F.4th
1193 (9th Cir. 2021), we noted that those doubts apply to
each of the exhaustion excusal rules outlined in Gonzalez-
Villalobos. See id. at 1197. In my view, none of these rules
survive Palomar-Santiago.
2. In the adverse credibility determination context, we
have said that when a petitioner “admits that she made a
conscious decision to lie to the asylum office . . . [t]hat
always counts as substantial evidence supporting an adverse
credibility finding, unless the lie falls within the narrow
Akinmade [v. INS, 196 F.3d 951 (9th Cir. 1999)] exception.”
Singh v. Holder, 643 F.3d 1178, 1181 (9th Cir. 2011)
16 ALAM V. GARLAND
(emphasis added). Singh was a pre-REAL ID Act case, but
we have continued to apply the rule it established in countless
cases since. See, e.g., Wan v. Garland, 848 F. App’x 308,
309 (9th Cir. 2021) (“Under the REAL ID Act, deliberate
deception always counts as substantial evidence supporting
an adverse credibility finding, even if the truth turns out to be
irrelevant.” (quoting Singh, 643 F.3d at 1181) (cleaned up));
Zhang v. Barr, 827 F. App’x 767, 767 (9th Cir. 2020) (same);
Zhong v. Barr, 815 F. App’x 189, 189 (9th Cir. 2020) (same).
Sometimes, we have even decided that there is no need to
consider other factors if a petitioner has lied. See Yi v.
Sessions, 705 F. App’x 660, 661 (9th Cir. 2017); Rahman v.
Sessions, 686 F. App’x 465, 466–67 (9th Cir. 2017).
This categorical rule that a petitioner’s lie always counts
as substantial evidence for an adverse credibility finding,
except when the Akinmade exception applies, has no basis in
the text of the Immigration and Nationality Act (“INA”),
which instead requires consideration of the “totality of the
circumstances.” 8 U.S.C. § 1158(b)(1)(B)(iii). Indeed, the
exception is itself an acknowledgment that we cannot treat a
petitioner’s lie the same way in every case. In Akinmade, we
recognized that a petitioner’s lie is not necessarily probative
of credibility if the petitioner lied to enter the United States
and escape persecution. 196 F.3d at 955. That is, for cases
within this narrow exception, the petitioner’s circumstances
justify his lie. See id. at 955–56. But there is no reason to
limit our consideration of the circumstances surrounding the
petitioner’s lie to only cases that fall within the exception.
We should decide whether a petitioner’s lie constitutes
substantial evidence by looking at the totality of the
circumstances in every case, as the INA directs.
ALAM V. GARLAND 17
3. The INA provides that “no court shall have jurisdiction
to review . . . any judgment regarding the granting of relief
under section 1182(h), 1182(i), 1229b, 1229c, or 1255 of this
title.” 8 U.S.C. § 1252(a)(2)(B)(i). In Mamigonian v. Biggs,
710 F.3d 936 (9th Cir. 2013), we held that “district courts
have jurisdiction to hear cases challenging final agency
determinations respecting eligibility for the immigration
benefits enumerated in 8 U.S.C. § 1252(a)(2)(B)(i) made on
nondiscretionary grounds, provided there is no pending
removal proceeding in which an alien could apply for such
benefits.” Id. at 945 (emphasis added). In other words, we
interpreted the jurisdiction-stripping provision of
§ 1252(a)(2)(B)(i) to apply only to agency determinations
made on discretionary grounds.
Our rule in Mamigonian is at best questionable given that
the INA’s jurisdiction-stripping provision includes no
exception for nondiscretionary final agency determinations.
See 8 U.S.C. § 1252(a)(2)(B)(i). The plain language of the
statute, which must be enforced when there is no ambiguity,
Jimenez v. Quarterman, 555 U.S. 113, 118 (2009), is
unequivocal that “no court shall have jurisdiction to review
. . . any judgment” regarding the grant of relief pursuant to
the specified provisions. See 8 U.S.C. § 1252(a)(2)(B)(i)
(emphasis added). “Any” means “every—used . . . to indicate
one that is selected without restriction or limitation of
choice.” Any, Webster’s Third New International Dictionary
97 (1986). “Judgment” means “[a] court’s final
determination of the rights and obligations of the parties in a
case,” as well as “an equitable decree and any order from
which an appeal lies.” Judgment, Black’s Law Dictionary
970 (10th ed. 2014) (emphasis added). Thus, our
Mamigonian decision which construes § 1252(a)(2)(B)(i) as
not applying to agency determinations “made on
18 ALAM V. GARLAND
nondiscretionary grounds,” 710 F.3d at 945, is at odds with
the plain language of the statute and ignores Congress’s intent
that this jurisdiction-stripping provision apply to “any
judgment,” i.e., one selected without restriction.
Indeed, the Eleventh Circuit recently reversed its prior
position, which aligned with our Mamigonian decision, and
held that “[t]he statute means what it says[:] ‘no court shall
have jurisdiction to review’ ‘any judgment regarding the
granting of relief . . . .” Patel v. U.S. Att’y Gen., 971 F.3d
1258, 1262, 1273 (11th Cir. 2020) (en banc).3 The statutory
scheme as a whole also supports this interpretation given that
8 U.S.C. § 1252(a)(2)(D) restores appellate courts’
jurisdiction to review constitutional claims or questions of
law. See Patel, 971 F.3d at 1275. If Congress wanted
appellate courts to retain jurisdiction over agency
determinations made on nondiscretionary grounds, it could
have simply said so, like it did for constitutional questions or
questions of law. See id. at 1275–76.
4. 8 U.S.C. § 1158(a)(2)(D) instructs that an application
for asylum of an alien may be considered, notwithstanding
that the petitioner did not file within the one-year time limit,
or that the petitioner previously applied for asylum and had
such application denied, “if the alien demonstrates to the
satisfaction of the Attorney General . . . the existence of . . .
3
The Eleventh Circuit conducted a comprehensive analysis on the
definition of the word “judgment” and explained that any doubt as to its
meaning must be “resolved in favor of a more expansive meaning given
the modifying phrases ‘any’ and ‘regarding.’” Patel, 971 F.3d
at 1273–74. The court thus concluded that the jurisdiction-stripping
provision “precludes us from reviewing ‘whatever kind’ of judgment
‘relating to’ the granting of relief under the five enumerated sections.” Id.
at 1274.
ALAM V. GARLAND 19
extraordinary circumstances relating to the delay in filing an
application.” 8 C.F.R. § 1208.4(a)(5) defines “extraordinary
circumstances” as “events or factors directly related to the
failure to meet the 1-year deadline.” And “[s]uch
circumstances may excuse the failure to file within the 1-year
period as long as the alien filed the application within a
reasonable period given those circumstances.” 8 C.F.R.
§ 1208.4(a)(5).
“We have held that a filing delay of less than six months
after an applicant’s nonimmigrant status has expired is
presumptively reasonable.” Singh v. Holder, 656 F.3d 1047,
1056 (9th Cir. 2011). “We based this holding on [65 Fed.
Reg. 76121, 76123–24],” which provides: “Clearly, waiting
six months or longer after expiration or termination of status
would not be considered reasonable. Shorter periods of time
would be considered on a case-by-case basis, with the
decision-maker taking into account the totality of the
circumstances.” Id.Our presumption as to the reasonableness of a filing delay
of less than six months is based on flawed logic. The
regulation’s statement that a delay of six months or more
“[c]learly” is not reasonable does not mean that the converse
is also true, i.e., that a delay of less than six months
presumptively is—especially when the regulation itself states
that shorter delays should be “considered on a case-by-case
basis, with the decision-maker taking into account the totality
of the circumstances.” 65 Fed. Reg. at 76124. Thus, our
less-than-six-month presumption is a judge-made rule that
has no basis in the text of the INA or the regulations seeking
to implement it. Cf. Ming Dai, 141 S. Ct. at 1677 (“Nothing
in the INA contemplates anything like the embellishment the
Ninth Circuit has adopted.”).
20 ALAM V. GARLAND
*****
These are four examples of rules ingrained in our caselaw
that we have continued to apply, but which, in my view, lack
a statutory basis. There may well be others. Our decision
today affirms that such rules have no place in our
jurisprudence, and that we may only rely on such rules that
sound in the text of the INA or its accompanying regulations.