Ramadan v. Gonzales

• Decision Date: 22 February 2007
• Docket Number: No. 03-74351.,03-74351.
• Citation: 479 F.3d 646
• Parties: Neama El Sayed RAMADAN; Gaser Hesham El Gendy, Petitioners, v. Alberto R. GONZALES, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

479 F.3d 646

Neama El Sayed RAMADAN; Gaser Hesham El Gendy, Petitioners, v. Alberto R. GONZALES, Attorney General, Respondent.

No. 03-74351.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 12, 2005.

Opinion Filed November 2, 2005.

Reheard and Resubmitted July 25, 2006.

Opinion Withdrawn February 22, 2007.

Filed February 22, 2007.

Amos Lawrence, San Francisco, CA, for the petitioners.

Peter D. Keisler, Richard M. Evans, Carl J. McIntyre, Jr., David J. Kline, Bryan S. Beier, Washington, D.C., for the respondent.

Lucas Guttentag, Jennifer Chang, Oakland, CA; Lee Gelernt (argued), Omar C. Jadwat, New York, NY; Mary Kenney, Washington, D.C., for amici curiae American Civil Liberties Union Foundation Immigrants' Rights Project and American Immigration Law Foundation.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency Nos. A79-561-874, A79-561-875.

Before HARRY PREGERSON, MICHAEL DALY HAWKINS, and SIDNEY R. THOMAS, Circuit Judges.

ORDER AND OPINION ORDER

With the granting of the petition for rehearing, the opinion filed on November 2, 2005, is withdrawn and the attached opinion is hereby filed. No further petitions for rehearing or rehearing en banc will be entertained.

OPINION

PER CURIAM.

We granted rehearing in this case to reconsider the scope of our jurisdiction under the Real ID Act, Pub L. No. 109-13 § 106(a) (2005), to review an agency decision under 8 U.S.C. § 1158(a)(2). When we originally decided this case, we determined that the phrase "questions of law" in section 106 of the Real ID Act "refer[red] to a narrow category of issues regarding statutory construction." Ramadan v. Gonzales, 427 F.3d 1218, 1222 (9th Cir.2005). As a consequence, we concluded that we lacked jurisdiction to review the Immigration Judge's ("IJ") determination that Petitioner Ramadan had failed to show changed circumstances to excuse the late filing of her application for asylum. Id.

We now hold that our jurisdiction over "questions of law" as defined in the Real ID Act includes not only "pure" issues of statutory interpretation, but also application of law to undisputed facts, sometimes referred to as mixed questions of law and fact. See Pullman-Standard v. Swint, 456 U.S. 273, 289 n. 19, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982) (defining mixed questions as those "in which the historical facts are admitted or established, the rule of law is undisputed, and the issue is whether the facts satisfy the statutory standard, or to put it another way, whether the rule of law as applied to the established facts is or is not violated"). By implying a fixed dichotomy between fact and law, our brief initial opinion inadvertently failed to consider an important category of cases—those that raise mixed questions of law and fact. We join the Second Circuit in holding that "questions of law" is broader than just statutory interpretation. Chen v. Gonzales, 471 F.3d 315, 326-27 (2d Cir.2006) ("We construe the intent of Congress's restoration under the Real ID Act rubric of `constitutional claims or questions of law' to encompass the same types of issues that courts traditionally exercised in habeas review over Executive detentions"). Our conclusion is compelled by the congressional intent underlying the enactment of the Real ID Act and principles of statutory interpretation, most importantly the doctrine of constitutional avoidance. This renewed discussion is primarily framed by the Supreme Court's decision in INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), and the subsequent enactment of the Real ID Act in response to that decision.

In reassessing our opinion in view of these considerations, we conclude that we have jurisdiction to review Ramadan's challenge to the IJ's determination that Ramadan failed to show changed circumstances to excuse the untimely filing of her application for asylum. Conducting such review, we hold that the record does not compel the contrary conclusion.

Our jurisdiction over Ramadan's application for withholding of removal was unaffected by our interpretation of section 106, and with respect to withholding, we continue to find that "the record does not compel the conclusion that it is `more likely than not' that Ramadan would suffer persecution if returned to Egypt." Ramadan, 427 F.3d at 1223. We therefore deny the petition for review as to both asylum and withholding of removal.

I

We detailed the facts and procedural history of this case in our prior opinion. Id. at 1220. Lead petitioner Neama El Sayed Ramadan is a native and citizen of Egypt. She earned degrees in physical education and rhythmic gymnastics from the University of Alexandria and then began teaching gymnastics and aerobics in Alexandria. Believing that "a woman should have her own opinion and should have her own way of living," Ramadan dressed in western attire and was consistently outspoken about her beliefs. As a result, she had problems with Islamic men, receiving threats in several instances. In 1999, Ramadan was again threatened, this time with the kidnaping of her son. This prompted her to leave Egypt for the United States with her son, where her husband and other family lived. Id. She arrived in September 1999. Id.

In February 2001, Ramadan attended a meeting with some 100-120 other people in San Francisco, where she participated in a discussion about women's liberty and role in Egypt. Id. at 1221. Shortly thereafter, Ramadan's parents and a friend in Egypt informed her that, because of the opinions she had expressed at the San Francisco meeting, someone in Egypt was looking for her and making threats as to what would happen if she were to return to Egypt. Id.

In June 2001, Ramadan filed applications for asylum and withholding of removal, claiming that she feared returning to Egypt on the basis of the threats she had experienced both before and after her arrival in the United States. Both applications were denied by an IJ.¹ Ramadan conceded that she failed to file her asylum application within one year of entry into the United States, as is required under 8 U.S.C. § 1158(a)(2)(B), but argued before the IJ that her application could be considered based on "changed circumstances" that materially affected her eligibility for relief. 8 U.S.C. § 1158(a)(2)(D); 8 C.F.R. § 208.4. The IJ rejected the claim of changed circumstances and found Ramadan's asylum application untimely. The IJ also rejected Ramadan's application for withholding of removal, because she had not shown that it was "more likely than not" that she would be persecuted were she to return to Egypt. The Board of Immigration Appeals ("BIA") summarily affirmed the IJ's decision, and Ramadan timely filed this petition for review.

II

As always, "we `have jurisdiction to determine whether jurisdiction exists.'" Flores-Miramontes v. INS, 212 F.3d 1133, 1135 (9th Cir.2000) (quoting Aragon-Ayon v. INS, 206 F.3d 847, 849 (9th Cir.2000)). Our jurisdiction to review the agency's denial of Ramadan's application for withholding of removal is conferred by 8 U.S.C. § 1252(a). Hakeem v. INS, 273 F.3d 812, 816 (9th Cir.2001).

The issue of our jurisdiction to review the denial of Ramadan's asylum application is more complicated. Under 8 U.S.C. § 1158(a)(2)(B), an alien seeking asylum must file an application within one year of arrival in the United States, unless one of two statutory exceptions applies. See 8 U.S.C. § 1158(a)(2)(D) (late applications may be considered "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"); 8 C.F.R. § 208.4(a)(4)(i) (listing examples of "changed circumstances . . . materially affecting the applicant's eligibility for asylum"); 8 C.F.R. § 208.4(a)(5)(i)-(iv) (listing examples of "extraordinary circumstances . . . directly related to the failure to meet the one-year deadline"). Ramadan argues that the IJ should have considered her asylum application because changed circumstances materially affected her eligibility for relief.

Whether we can review the IJ's determination that Ramadan had not shown such changed circumstances depends on the extent to which section 106 of the Real ID Act restores our jurisdiction. Prior to the passage of the Real ID Act, 8 U.S.C. § 1158(a)(3) precluded our review of any determination relating to the application of the one-year bar.² Hakeem, 273 F.3d at 815. Section 106 of the Real ID Act of 2005 restores our jurisdiction over "constitutional claims or questions of law."³ Fernandez-Ruiz v. Gonzales, 410 F.3d 585, 587 (9th Cir.2005). Our jurisdiction therefore turns on whether the "changed circumstances" claim presents a "question of law": if it does, section 106 restores our jurisdiction, but if it does not, the § 1158(a)(3) jurisdictional bar applies and we lack jurisdiction.⁴ In our prior opinion, we held that "questions of law" meant only "a narrow category of issues regarding statutory construction." Ramadan, 427 F.3d at 1222. "Changed circumstances," we held, was an "essentially factual [question] and thus not a `question of law' within the meaning of the Real ID Act." Id. at 1220. We now hold that "questions of law," as it is used in section 106, extends to questions involving the application of statutes or regulations to undisputed facts, sometimes referred to as mixed questions of fact and law. Further, we hold that the "changed circumstances" question presented by Ramadan's petition is a question of the application of a statutory standard to undisputed facts, over which we have jurisdiction.

III

We are mindful of the legal development—both legislative and judicial—that has led to the current constraints on judicial review of immigration decisions, presently embodied in the Real ID Act. Notably, Congress consciously deemed the history of...