Chen v. U.S. Dept. of Justice

• Decision Date: 11 January 2006
• Docket Number: Docket No. 02-4631.
• Citation: 434 F.3d 144
• 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

434 F.3d 144

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.

Submitted: February 23, 2005.

Decided: January 6, 2006.

Errata Filed: January 11, 2006.

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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), Office of the United States Attorney for the District of New Jersey, Newark, NJ, for Respondent.

Before: NEWMAN, LEVAL, and CABRANES, Circuit Judges.

JOSÉ A. CABRANES, Circuit Judge.

Petitioner Xiao Ji Chen, a native and citizen of the People's Republic of China, petitions this Court for review of a September 25, 2002 order of the Board of Immigration Appeals ("BIA") summarily affirming a November 17, 2000 decision of an immigration judge ("IJ"). 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 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 for lack of jurisdiction petitioner's contention that the IJ committed an error of law or otherwise abused his discretion when he declined to excuse her lateness in filing her asylum application. We hold that (1) we are without jurisdiction to review the IJ's discretionary determination that petitioner failed to establish changed or extraordinary circumstances, and (2) because there is no disputed issue of statutory construction, we lack jurisdiction to review petitioner's claim that the IJ "fail[ed] to apply the law" and therefore committed error purportedly giving rise to "questions of law" within the meaning of Section 106(a)(1)(A)(iii) of the REAL ID Act of 2005 ("Section 106"), Pub.L. 109-13, 119 Stat. 231, 302 (codified at 8 U.S.C. § 1252(a)(2)(D)).

Insofar as petitioner's contention that the IJ "fail[ed] to apply the law" may be construed as a claim under the Due Process Clause of the Fifth Amendment, we hold that we possess jurisdiction to review the claim under Section 106 but conclude that the claim lacks merit. Finally, we conclude that the IJ's decision denying petitioner's application for withholding of removal is supported by substantial evidence and it is clear that the IJ would reach the same decision in the absence of the noted deficiencies.

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 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.

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. 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. Decision of the Immigration Judge, Nov. 17, 2000 ("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, we review the IJ's decision directly under a standard of "substantial evidence." See Yu Sheng Zhang v. U.S. Dep't of Justice, 362 F.3d 155, 158-59 (2d Cir.2004); 8 C.F.R. § 1003.1(e)(4) (setting forth procedures for affirmance without opinion). We consider first whether we have jurisdiction to review the IJ's discretionary determination, with respect to petitioner's asylum claim, that petitioner failed to establish either changed or extraordinary circumstances under 8 U.S.C. § 1158(a)(2)(D). We then evaluate petitioner's claim that the IJ improperly rejected her request for withholding of removal under both the INA and the CAT.

I. Asylum

Title 8, Section 1158(a)(1) of the United States Code provides, in relevant part, that "[a]ny alien who is physically present in the United States or who arrives in the United States ... may apply for asylum." That statutory provision, however, is limited by § 1158(a)(2)(B), which states that § 1158(a)(1) "shall not apply to an alien unless the alien demonstrates by clear and convincing evidence that the application [for asylum] has been filed within 1 year after the date of the alien's arrival in the United States." A discretionary exception to § 1158(a)(2)(B)'s one-year bar is created by § 1158(a)(2)(D), which provides that

[a]n application for asylum of an alien may be considered, notwithstanding [an alien's failure to apply for asylum within one year of the alien's arrival or the denial of a prior asylum application], if the alien demonstrates to the satisfaction of the Attorney General either the existence of changed circumstances which materially affect the applicant's eligibility for asylum or extraordinary circumstances relating to the delay in filing an application within the [one-year] period.

8 U.S.C. § 1158(a)(2)(D) (emphases added). Finally, 8 U.S.C. § 1158(a)(3) provides that "[n]o court shall have jurisdiction to review any determination of the Attorney General under [§ 1158(a)(2)]."

Based on the foregoing, our sister circuits have uniformly recognized that we lack jurisdiction to review an asylum application that the BIA has deemed untimely or as to which the BIA has found...