Jorgji v. Mukasey

• Decision Date: 24 January 2008
• Docket Number: No. 07-4571.,07-4571.
• Citation: 514 F.3d 53
• Parties: Dimitrulla JORGJI, Pandeli Jorgji, and Angjello Jorgji, Petitioners, v. Michael MUKASEY, Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

514 F.3d 53

Dimitrulla JORGJI, Pandeli Jorgji, and Angjello Jorgji, Petitioners, v. Michael MUKASEY, Attorney General, Respondent.

No. 07-4571.

United States Court of Appeals, First Circuit.

Submitted November 8, 2007.

Decided January 24, 2008.

Gregory Marotta and Law Office of Gregory Marotta on brief for petitioners.

Rebecca A. Niburg, Office of Immigration Litigation, Civil Division, Department of Justice, Peter D. Keisler, Assistant Attorney General, Civil Division, and Jeffrey J. Bernstein, Senior Litigation Counsel, Office of Immigration Litigation, on brief for respondent.

Before BOUDIN, Chief Judge, CAMPBELL and STAHL, Senior Circuit Judges.

BOUDIN, Chief Judge.

Pandeli and Dimitrulla Jorgji, who are husband and wife, and their son Angjello Jorgji are citizens of Albania. All entered the United States on tourist visas (Pandeli in 2000 and Dimitrulla and Angjello in 2001) which they then overstayed. Pandeli and Dimitrulla each applied for asylum-Dimitrulla in March 2002 and Pandeli in November 2002—and each claimed the other spouse and their son as derivatively entitled to asylum. 8 U.S.C. § 1158(b)(3)(A) (2000); 8 C.F.R. 208.3(a) (2007).

In June 2002 the responsible agency— then the Immigration and Naturalization Service ("INS")—began removal proceedings, 8 U.S.C. § 1227(a)(1)(B). Thereafter, successive hearings were held at which the Jorgjis conceded removability, as they had overstayed their visas, but requested asylum on the ground that they had previously suffered persecution in Albania and reasonably feared persecution should they return.

In hearings before an Immigration Judge, the Jorgjis, of Greek ethnicity and Christian Orthodox religion, sought to show that both Dimitrulla's and Pandeli's families were persecuted in the past for their beliefs—Pandeli's family members largely for their political beliefs and Dimitrulla's mainly for their faith. Also Dimitrulla and Pandeli each said that they observed the killing of villagers who attempted to cross the border from Albania into Greece.

On August 22, 2005, the Immigration Judge denied the Jorgjis' asylum applications finding that the applications were untimely under a statutory requirement that asylum applications be filed within one year of the applicant's entry into the United States. 8 U.S.C. § 1158(a)(2)(B); 8 C.F.R. § 208.4(a)(2)(A). Alternatively, the IJ found that Dimitrulla and Pandeli had not shown a well-founded fear of persecution as required by the statute and regulations. 8 U.S.C. § 1101(a)(42)(A); 8 C.F.R. § 208.13(b). The IJ also denied the Jorgjis' requests for withholding of removal and protection under the Convention Against Torture.

The Jorgjis sought review before the Board of Immigration Appeals. ("BIA" or "Board"), which, on March 23, 2007, issued a brief affirmance. The BIA said that even if the Jorgjis were found to have timely filed their applications for asylum, their childhood experiences and the persecution of their parents and grandparents "are too remote in time to constitute persecution." The BIA did not further consider the Jorgjis' withholding of removal and CAT claims, which were not properly raised before it.

On review in this court, the Jorgjis argue that at least Dimitrulla's application was timely;¹ they further claim that the Immigration Judge and the Board erred in their assessment of the merits of her persecution claim (and, in the case of the IJ, in the conduct of the proceeding). They have not pursued their withholding and torture convention claims. We begin with the timeliness issue and then turn to the merits and due process issues.

Under the Immigration and Nationality. Act an alien must show by clear and convincing evidence that the asylum application was filed with the agency within one year of arriving in the United States, or that the applicant qualifies for an exception to the one-year deadline. 8 U.S.C. § 1158(a)(2)(B). The BIA has the authority to make regulations governing asylum applications. 8 U.S.C. § 1158(a)(1)(B).

Under the pertinent regulations (set forth in an addendum to this decision), the one-year period is calculated from the date of the alien's arrival in the United States; but "[w]hen the last day of the period so computed falls on a Saturday, Sunday, or legal holiday, the period shall run until the end of the next day that is not a Saturday, Sunday, or legal holiday." 8 C.F.R. § 208.4(a)(2)(ii). Dimitrulla entered the United States on March 4, 2001; she mailed her application on Monday, March 4, 2002, and the government received it on March 6, 2002.

Because the agency must ordinarily receive the application within the, one-year period, Dimitrulla's application might appear to be out of time. But when the application has not been received "within 1 year from the applicant's date of entry ... but the applicant provides clear and convincing documentary evidence of mailing the application within the 1-year period, the mailing date shall be considered the filing date." 8 C.F.R. § 208.4(a)(2)(ii). Dimitrulla's application would thus be timely if the two regulations can both be applied to a mailed application.

Although the INS attorney did not dispute the timeliness of Dimitrulla's application during the administrative hearing, the IJ concluded that under the regulations, Dimitrulla had to file her application "within one year"; that the filing period ran until Sunday, March 3, 2002, which is one year after entry; and that Dimitrulla had failed to mail her application within the one-year period. The. Jorgjis say that this reading is at odds with the language of the regulations excluding Saturdays, Sundays and holidays.²

Remarkably, the government argues that we have no authority to review this timeliness determination "because," according to the government's brief, "it rests on factual findings." Under current law, review of factual findings as to timeliness is barred but review of legal and constitutional questions is not, as the government brief admits. 8 U.S.C. § 1158(a)(3) (bar on review of findings); id. § 1252(a)(2)(D) (exception for constitutional and legal issues); see also Pan v. Gonzales, 489 F.3d 80, 84 (1st Cir.2007).

Thus, if there were a dispute about when in fact the applications were mailed or received, the IJ decision would be conclusive. 'But here the facts are undisputed; and whether the application was timely filed depends solely on how the regulations are read-obviously a question of law. The government, an institutional litigant with a stake in consistent administration of the statute, ought to have more sense than to make such an argument.

The legal issue is perhaps a difficult one. It is quite possible that the drafters of the two provisions did not think about whether they apply cumulatively in a situation like this one. And, if they did think about it, they might have preferred that only one or the other apply, depending on whether the application was filed in person or by mail. The exclusion of weekends and holidays makes good sense as to applications that are filed by hand because most government offices are closed on those days; but nothing prevents anyone from putting a letter in a mail box on a weekend or holiday.

Conversely, the mailing exception treats an application as filed when mailed where the applicant provides "evidence of mailing the application within the 1-year period" and—read independently of the weekend and holiday provision—Dimitrulla plainly did not mail the application within one year of her arrival but instead mailed it on the following day. But the regulation excluding weekends and holidays does not say that it operates only as to applications filed by hand and on a literal reading appears to apply to all applications.

These regulations are addressed to the public—indeed, asylum seekers who may lack counsel when filing—and the literal language supports Dimitrulla's reading, even if a sophisticated reading based on policy might support another outcome. Further, there is no agency precedent for the reading offered by the government's brief and precious little argument in the brief beyond assertion. Indeed, the possible policy argument in favor of the government is not made in the government brief.

Ordinarily, the agency receives deference in construing its own regulations. Sidell v. Comm'r, 225 F.3d 103, 109 (1st Cir.2000). But whether we have an agency interpretation, as opposed to a litigating position by counsel, is open to doubt: the IJ addressed the issue in a few sentences with no citation to precedent, and the Board bypassed the issue and went directly to the merits. Under these circumstances, we will follow the literal language, adding that the government would be well advised formally to clarify the regulation language if it prefers its counsel's position to govern in the future.

We turn now to the merits. To be entitled to asylum, the Jorgjis had to establish a well-founded fear of future persecution on one or more of five enumerated grounds (race, religion, nationality, membership in a particular social group, and political opinion). 8 U.S.C. § 1101(a)(42)(A); 8 C.F.R. § 208.13(b); see also Bocova v. Gonzales, 412 F.3d 257, 262 (1st Cir.2005). A showing of past persecution gives rise to a presumption of future persecution unless rebutted. 8 C.F.R. § 208.13(b)(1); see also Zarouile v. Gonzales, 424 F.3d 60, 63 (1st Cir.2005).

Remarkably, the government's brief addresses with care the claim that the hearing was procedurally unfair but scarcely addresses at all the substance of the persecution claim beyond reciting (in the statement of facts) the IJ's own analysis. This may be partly explained, but not excused, by the Jorgjis' brief, which only modestly discusses the merits of the persecution issue, concentrating primarily on a claim of alleged unfairness in the IJ's conduct of the hearings.

Nevertheless, the IJ's analysis is quite detailed; the Board's statement is succinct but coherent; and it is...