Xiao Ji Chen v. U.S. Dept. of Justice

• Decision Date: 06 January 2006
• Docket Number: Docket No. 02-4631.
• Citation: 471 F.3d 315
• Parties: XIAO JI CHEN, Petitioner, v. UNITED STATES DEPARTMENT OF JUSTICE, Attorney General Alberto R. Gonzales,<SMALL><SUP>*</SUP></SMALL> Respondent.
• Court: U.S. Court of Appeals — Second Circuit

Page 315

471 F.3d 315

XIAO JI CHEN, Petitioner, v. UNITED STATES DEPARTMENT OF JUSTICE, Attorney General Alberto R. Gonzales,^* Respondent.

Docket No. 02-4631.

United States Court of Appeals, Second Circuit.

Decided: January 6, 2006.

Opinion Revised: December 7, 2006.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Bruno Joseph Bembi, Hempstead, NY, for Petitioner.

Donna A. Krappa, Assistant United States Attorney (Christopher J. Christie, United States Attorney for the District of New Jersey, on the brief), United States Attorney's Office for the District of New Jersey, Newark, NJ, for Respondent.

Lee Gelernt, American Civil Liberties Union Foundation, Immigrants' Rights Project, New York, N.Y. (Omar C. Jadwat, American Civil Liberties Union Foundation, Immigrants' Rights Project, New York, NY; Lucas Guttentag, Jennifer C. Chang, American Civil Liberties Union Foundation, Immigrants' Rights Project, Oakland, CA; Mary Kenney, American Immigration Law Foundation, Washington, DC, on the brief), for Amici Curiae in Support of Petitioner on Petition for Rehearing.

Bryan S. Beier, Senior Litigation Counsel, Office of Immigration Litigation, Washington, DC (Peter D. Keisler, Assistant Attorney General, United States Department of Justice, Civil Division; Jonathan F. Cohn, Deputy Assistant Attorney General; David J. Kline, Principal Deputy Director, Office of Immigration Litigation, on the brief), for Respondent on Petition for Rehearing.

Before NEWMAN, LEVAL, and CABRANES, Circuit Judges.

JOSÉ A. CABRANES, Circuit Judge.

We hereby grant the petition for rehearing of our January 6, 2006 opinion in this case, see Xiao Ji Chen v. U.S. Dep't of Justice, 434 F.3d 144 (2d Cir.2006). In the January 6 opinion, under the heading "I. Asylum," id. at 150-55, we expressed the view that "questions of law," as the term is used in section 106(a)(1)(A)(iii) of the REAL ID Act of 2005 ("REAL ID Act"), Pub.L. No. 109-13, 119 Stat. 231, 302 (codified at 8 U.S.C. § 1252(a)(2)(D)) — in part defining the scope of our jurisdiction to review removal, deportation, or exclusion orders — refers only to "a narrow category of issues regarding statutory construction." Xiao Ji Chen, 434 F.3d at 153 (internal quotation marks omitted). Upon consideration of the briefs submitted on this petition for rehearing, we conclude that the term "questions of law" is not so limited. See post at 323-32. We revise substantially our analysis in Part I of the earlier opinion as to what constitutes "questions of law" under section 106(a)(1)(A)(iii) of the REAL ID Act. We hereby vacate our prior opinion and issue this opinion in its place.^**

* * * *

Petitioner Xiao Ji Chen, a native and citizen of China, seeks review of a September 25, 2002 order of the Board of Immigration Appeals ("BIA") affirming the November 17, 2000 decision of Immigration Judge ("IJ") Adam Opaciuch. In re Xiao Ji Chen, No. A 77 009 293 (B.I.A. Sept. 25, 2002), aff'g No. A 77 009 293 (Immig. Ct. N.Y. City Nov. 17, 2000) ("IJ Decision"). The IJ found petitioner's application for asylum, which was filed more than one year after her arrival in the United States, untimely. See 8 U.S.C. § 1158(a)(2)(B). He further found that she had not established either "changed circumstances which materially affect[ed][her] eligibility for asylum" or the existence of "extraordinary circumstances" that would have excused her tardiness in filing her application. Id. § 1158(a)(2)(D). Finally, the IJ denied petitioner's application for withholding of removal based on his finding that she failed to establish that were she to return to China, it was more likely than not that she would be subject to persecution or torture. See id. § 1231(b)(3)(A); 8 C.F.R. § 1208.16(c).

In her petition for review to this Court, petitioner urges that her lateness in filing her asylum application should have been excused by the IJ because she demonstrated both "changed circumstances" materially affecting her eligibility for asylum and "extraordinary circumstances" that prevented her from timely filing her application. Specifically, she asserts that there were "changed circumstances" because, shortly before her hearing before the IJ, she gave birth in the United States to her second child, who automatically, by operation of law, is a citizen of the United States. She claims also that "extraordinary circumstances" affecting the timeliness of her asylum application existed because the Immigration and Naturalization Service ("INS") "failed to have a procedure in place that would have permitted [her] to preserve a request for asylum when she was first detained by [the] INS within her first year of being in the United States."¹ Pet'r's Br. at 5. Petitioner avers inter alia, that, in finding that she did not demonstrate changed or extraordinary circumstances that would excuse her lateness in filing her asylum application, the IJ and the BIA violated her right to due process and "fail[ed] to apply the law." Id. at 13, 18. Finally, petitioner alleges that the IJ's determination that she is ineligible for withholding of removal under either the Immigration and Nationality Act of 1952 ("INA"), as amended, or the United Nations Convention Against Torture ("CAT")² is not supported by substantial evidence.

For the reasons that follow, we dismiss the petition for lack of jurisdiction to the extent it contends that the IJ committed constitutional or legal error when he declined to excuse petitioner's lateness in filing her asylum application, because we conclude that the petition fails to raise a "constitutional claim[] or question[] of law" within the meaning of section 106(a)(1)(A)(iii) of the REAL ID Act. Finally, we conclude that although the IJ's decision denying petitioner's application for withholding of removal contains errors, remand nevertheless would be futile because the decision is supported by substantial evidence and it is clear that the same decision would be made in the absence of the noted deficiencies. We therefore deny that portion of the petition.

BACKGROUND

In her removal hearing before the IJ, petitioner alleged past and future persecution based on her opposition to the Chinese family planning policy, testifying that she had been forced to undergo an abortion in October 1997 and that she would be sterilized were she to return to China. Petitioner stated that she had been required to sign a family planning agreement upon her marriage in November 1992, and that, as a factory worker, she had been designated as living in an "urban household," a status that limited her to having only one child. Five months after the birth of her first child in September 1994, petitioner alleged, the Chinese government forced her to undergo the insertion of an intrauterine device ("IUD"), after which she was required to attend quarterly examinations to confirm that she was not pregnant and that the IUD remained in place. According to petitioner, the IUD fell out at some unidentified time, and she became pregnant again in June 1997. Petitioner asserts that she then missed her next two IUD check-ups scheduled for July 1997 and October 10, 1997; during this time period, petitioner went into hiding at her mother's home in another village, despite continuing to report to work.

According to petitioner, the local birth control officials became suspicious of her and, as a result, called her mother's home and came to petitioner's workplace on October 19, 1997. Petitioner testified that she was then taken to a doctor, at which time her pregnancy was discovered, and she was forced to undergo an abortion. Rather than return approximately ten days later for sterilization, as she had been instructed, petitioner states that she made arrangements to flee to the United States, where she arrived on or about May 21, 1998. Petitioner gave birth in the United States to a second child in April 2000.

On April 27, 1999, approximately eleven months after her arrival in the United States, petitioner was detained for approximately 5-6 hours by INS officials and was ordered to appear at a removal hearing in August 1999. Petitioner filed her written application for asylum with the immigration court on October 13, 1999, nearly fifteen months after her arrival in the United States, and a merits hearing was held before the IJ on November 17, 2000.

In a decision issued at the conclusion of petitioner's hearing, the IJ rejected petitioner's application for asylum on the grounds that she had failed to file her application within one year of her arrival in the United States, as required by 8 U.S.C. § 1158(a)(2)(B), and that she had failed to establish either "changed circumstances" materially affecting her eligibility for asylum or "extraordinary circumstances" excusing her untimely filing. The IJ then concluded that, even if petitioner's asylum application was not in fact time-barred, she had failed to establish a credible case of past or future persecution entitling her either to asylum or withholding of removal under the INA or the CAT. Citing several specific examples, the IJ stated that petitioner's testimony was "inherently improbable, internally inconsistent, inconsistent with her written application as well as some of her supporting documents," and "contradicted by the State Department profile" of country conditions in China. IJ Decision at 9. Accordingly, the IJ concluded that petitioner had failed to satisfy her burden of proof to demonstrate eligibility for the relief requested.

On September 25, 2002, the BIA summarily affirmed, without opinion, the decision of the IJ. This petition for review followed.

DISCUSSION

Where, as here, the BIA has affirmed the IJ's decision without an opinion, see 8 C.F.R. § 1003.1(e)(4), we review the IJ's decision directly as the final agency determination. Ming Xia Chen v. BIA, 435 F.3d 141, 144 (2d Cir.2006). In this case, we consider first whether we have jurisdiction to review the IJ's discretionary and factual...