Almuhtaseb v. Gonzales

• Citation: 453 F.3d 743
• Decision Date: 14 July 2006
• Docket Number: No. 04-3984.,04-3984.
• Parties: Jihan Hatem ALMUHTASEB, Petitioner, v. Alberto GONZALES, Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

453 F.3d 743

Jihan Hatem ALMUHTASEB, Petitioner, v. Alberto GONZALES, Attorney General, Respondent.

No. 04-3984.

United States Court of Appeals, Sixth Circuit.

Submitted: March 6, 2006.

Decided and Filed: July 14, 2006.

ON BRIEF: Thomas P. Adams, New Orleans, Louisiana, for Petitioner. Jonathan F. Potter, Douglas E. Ginsburg, U.S. Department of Justice, Office of Immigration Litigation, Washington, D.C., for Respondent.

Before: BOGGS, Chief Judge; MOORE and COOK, Circuit Judges.

OPINION

KAREN NELSON MOORE, Circuit Judge.

Jihan Hatem Almuhtaseb ("Almuhtaseb") petitions this court for review of the denial of her request for asylum, or, in the alternative, withholding of removal, by the Board of Immigration Appeals ("BIA"). Almuhtaseb's petition allows us to consider for the first time the effect of § 106(a)(1)(A)(iii) of the REAL ID Act of 2005 ("REAL ID Act"), 8 U.S.C. § 1252(a)(2)(D), on our ability to review denials of asylum based on untimeliness. Because we are without jurisdiction to review the denial of Almuhtaseb's asylum application, we DISMISS that part of her petition, and because Almuhtaseb cannot meet the high bar set to qualify for withholding of removal, we AFFIRM the BIA's decision denying withholding of removal.

I. FACTS AND PROCEDURE

A. Background

Almuhtaseb was born in 1974 in Hebron, a city in the West Bank territory. According to Almuhtaseb's asylum application, her father, a high school teacher, spoke out about the Israeli occupation of the West Bank and was imprisoned by the Israelis six separate times. Almuhtaseb's brother and sister were also politically active and were each shot by the Israelis. They have been granted asylum in the United States based on their fear of persecution by the Israelis. Almuhtaseb states that other of her family members experienced similar or worse violence, and in 2002, three cousins of Almuhtaseb's husband were killed by Israelis.

Almuhtaseb herself joined several Palestinian organizations during college and was active in organizing and participating in marches and demonstrations that opposed the Israeli occupation of the West Bank. Almuhtaseb asserts that she has experienced four separate incidents of harm by the Israelis, each of which occurred within a few years after the start of the First Intifada, or Palestinian uprising against the Israeli occupation, in 1987. During a demonstration on International Women's Day in March 1988 or 1989, an Israeli soldier grabbed, beat, and pushed Almuhtaseb face-down on the ground. Almuhtaseb's sister was shot at this demonstration. Also during the same time period, an Israeli soldier looking for rock-throwing children came to Almuhtaseb's home. After inquiring about the children and hearing Almuhtaseb's denial that they were there, the soldier sprayed her face with a chemical. Almuhtaseb's father was arrested and jailed for a day when he tried to protect her from this attack. Almuhtaseb was also arrested and held overnight for participation in a demonstration during this time period. On another occasion in 1988 or 1989, an Israeli settler threw a stone at Almuhtaseb, striking her head.

Almuhtaseb first came to the United States on August 26, 1996, and returned to Hebron on August 26, 1997. She returned to the United States on December 7, 1997 and has not left since that time. In the United States, Almuhtaseb married a legal permanent resident and had two children. Almuhtaseb filed an application for asylum in 2001. She claims that she waited to request asylum because she was hopeful that the situation in the West Bank would improve. Almuhtaseb states that even after her brother was granted asylum in 1999, she did not know whether she would be eligible because, unlike him, she had not been shot. However, in 2001, when her sister was granted asylum and it appeared to Almuhtaseb that the violence in the West Bank heightened considerably, she filed her asylum application.

Almuhtaseb states that she fears that returning to the West Bank would expose her to shootings; shellings; bombings; settlers' attacks; lack of infrastructure, education, jobs, and medicine; and the lack of access to medical care during periodic curfews. When asked why Almuhtaseb might be a particular target of persecution by the Israelis, she and her sister responded that she would be targeted based on her own and her family's involvement in the resistance to the occupation and because her family had "been persecuted and attacked by the Israelis." Administrative Record ("A.R.") at 124 (Hearing Transcript ("Hr'g Tr.") at 53).

B. Procedural History

On September 27, 2001, the Immigration and Naturalization Service ("INS") sent Almuhtaseb a Notice to Appear for remaining in the United States beyond the time permitted by her visa. In her hearing before the Immigration Judge ("IJ"), Almuhtaseb conceded removability but denied Jordanian citizenship and requested asylum, or, in the alternative, withholding of removal, and protection under the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment ("CAT") art. 3, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85. The IJ accepted the INS's concession that Almuhtaseb was credible. A.R. at 62 (IJ Opinion ("Op.") at 4). However, the IJ denied her application for asylum because she did not comply with the Immigration and Naturalization Act's ("INA") requirement that asylum applications be filed within one year of entering the United States. See 8 U.S.C. § 1158(a)(2)(B). He concluded that she did not show sufficient changed circumstances to justify the delay. He reasoned that any worsened conditions in the West Bank would not support her asylum claim because they are due to "general carnage" rather than the targeting of Almuhtaseb. A.R. at 64 (IJ Op. at 6). He also found that, in any event, Almuhtaseb was a Jordanian citizen who could escape the West Bank violence by going to Jordan. The BIA affirmed the IJ's decision regarding asylum and concluded that Almuhtaseb was not entitled to withholding of removal or relief under the CAT because she did not show past persecution, a likelihood of torture on return, or that any harm she feared was targeted at her particularly rather than a result of generalized violence. However, the BIA reversed the IJ's conclusion regarding Jordanian citizenship, and instead concluded that Almuhtaseb is a stateless Palestinian. The government does not appeal this determination. Almuhtaseb petitioned this court to review the BIA's determination denying her asylum and withholding of removal.

II. ANALYSIS

A. Asylum

Prior to the passage of the REAL ID Act, we held that our jurisdiction did not extend to review a denial of asylum based on a finding that a petition was untimely and that changed circumstances did not justify the delay in filing. See Castellano-Chacon v. INS, 341 F.3d 533, 544 (6th Cir.2003) (interpreting and applying 8 U.S.C. § 1158(a)(3)). The REAL ID Act, Pub.L. 109-13, 119 Stat. 231 (codified as amended in scattered sections of 8 U.S.C.), was enacted on May 11, 2005¹ in response to the Supreme Court's decision in INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), which held that under 28 U.S.C. § 2241, federal courts have jurisdiction over habeas petitions brought by aliens in custody pursuant to a deportation order. The REAL ID Act was meant to remedy the seemingly anomalous result that "`aliens who have committed serious crimes in the United States are generally able to obtain more judicial review than non-criminal aliens'" because their habeas petitions would first be reviewed by a district court, whereas non-criminal aliens had to begin their judicial review process in the courts of appeals. Chen v. U.S. Dep't of Justice, 434 F.3d 144, 154 n. 5 (2d Cir.2006) (quoting H.R.Rep. No. 109-72, at 174 (2005)). The REAL ID Act renders petitions for review the exclusive means for judicial review for all orders of removal, except for limited habeas review of expedited removal orders. Elia v. Gonzales, 431 F.3d 268, 273 n. 5 (6th Cir.2005) (citing 8 U.S.C. § 1252(a)(2)(D), (a)(5), (e)).

The REAL ID Act § 106(a)(1)(A)(iii) amends § 242 of the INA so that the Code now provides that "[n]othing . . . in any. . . provision of this chapter (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section." 8 U.S.C. § 1252(a)(2)(D) (emphasis added). Whether the REAL ID Act grants the courts of appeals jurisdiction to review denials of asylum based on untimeliness previously barred by 8 U.S.C. § 1158(a)(3) is a question of first impression in this circuit.² Several of our sister circuits have considered this question and concluded that they did not have jurisdiction to review an asylum timeliness determination unless it presented a constitutional claim or other legal question. Diallo v. Gonzales, 447 F.3d 1274, 1281-82 (10th Cir. 2006); Sukwanputra v. Gonzales, 434 F.3d 627, 633-35 (3d Cir.2006); Chen, 434 F.3d at 154 (2d Cir.); Mehilli v. Gonzales, 433 F.3d 86, 93-94 (1st Cir.2005); Ramadan v. Gonzales, 427 F.3d 1218, 1222 (9th Cir. 2005); Vasile v. Gonzales, 417 F.3d 766, 768-69 (7th Cir.2005); see also Chacon-Botero v. U.S. Attorney Gen., 427 F.3d 954, 957 (11th Cir.2005) (holding that the REAL ID Act did not confer jurisdiction to review an IJ's untimeliness ruling); Bosung v. Gonzales, No. 05-1555, 2006 WL 851092, at *1 (4th Cir. Apr.3, 2006) (unpublished opinion) (per curiam) (same).

We find the Second Circuit's reasoning in Chen to be persuasive. See Chen, 434 F.3d at 151-54. Chen held that "[t]he term `constitutional claims' clearly relates to claims brought pursuant to provisions of the Constitution of the United States." 434 F.3d at 151. The Second Circuit then determined that "questions of law" could not...