Vincent v. Holder

• Decision Date: 15 February 2011
• Docket Number: No. 09–3975.,09–3975.
• Citation: 632 F.3d 351
• Parties: Frank Benoni VINCENT, Petitioner,v.Eric H. HOLDER, Jr., United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

632 F.3d 351

Frank Benoni VINCENT, Petitioner,

v.Eric H. HOLDER, Jr., United States Attorney General, Respondent.

No. 09–3975.

United States Court of Appeals, Sixth Circuit.

Feb. 15, 2011.

ON BRIEF: Mark M. Nesbit, Nesbit Law Firm, Columbus, Ohio, for Petitioner. Craig A. Newell, Jr., United States Department of Justice, Office of Immigration Litigation, Washington, D.C., for Respondent.Before: MERRITT, ROGERS, and WHITE, Circuit Judges.

OPINION

MERRITT, Circuit Judge.

Petitioner, Frank Vincent, seeks review of the final order of the Board of Immigration Appeals affirming the immigration judge's denial of his application for asylum, withholding of removal, and protection under the United Nations Convention Against Torture. We conclude that the asylum petition is untimely and that petitioner has not shown any “extraordinary” or “changed” circumstances to excuse the untimeliness. Likewise, petitioner has not shown a “likelihood of torture” under the United Nations Convention Against Torture, as implemented by regulation issued by the United States Attorney General. 8 C.F.R. § 1208.1(a)(1). However, because we disagree with the finding that petitioner did not suffer past persecution, we remand to the Board for further consideration as to whether petitioner has a well-founded fear of future persecution if returned to his native country of Sierra Leone.

Petitioner is a native and citizen of Sierra Leone. He entered the country legally on July 2, 2000, on a nonimmigrant visitor visa that initially allowed him to stay until September 6, 2000, but was extended until March 31, 2001. Vincent overstayed his authorized time and married a United States citizen on August 6, 2001. He did not file an asylum application within one year of arriving in the United States, choosing instead to rely on his wife's citizenship to adjust his status. On June 11, 2002, his citizen wife filed an immigrant visa petition (Form I–130) on his behalf and, on the same day, petitioner filed an application for adjustment of status based on the pending visa application. A little over a month later, in July 2002, his wife died, causing his visa petition and adjustment-of-status application to be denied on May 6, 2003. On July 14, 2003, about a year after his wife died, Vincent filed an asylum application. He was placed in removal proceedings as an alien who remained in the United States longer than authorized, and a hearing was held in the immigration court on October 5, 2005. After the hearing, in which Vincent was represented by counsel and conceded removability, he filed an updated application for asylum, withholding of removal and protection under the Convention Against Torture. A merits hearing was held on October 25, 2007; and, at the conclusion of the hearing, the immigration judge orally denied Vincent's claims for asylum, withholding of removal and protection under the Convention Against Torture. Vincent timely appealed to the Board of Immigration Appeals, which dismissed his appeal on July 14, 2009. Vincent timely filed a petition for review in this Court.

I. Asylum Application Untimely

The Immigration and Nationality Act requires that an asylum applicant “demonstrate[ ] by clear and convincing evidence that the application has been filed within 1 year after the date of the alien's arrival in the United States.” 8 U.S.C. § 1158(a)(2)(B). This requirement is subject to exceptions in cases where 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 required one-year period. Id. at § 1158(a)(2)(D). A different subsection of Section 1158 creates a jurisdictional bar to review of the timeliness issue: “[n]o court shall have jurisdiction to review any determination of the Attorney General” regarding whether changed or extraordinary circumstances exist to excuse the filing of an asylum application beyond one year after arrival in the United States. Id. § 1158(a)(3). However, the jurisdictional bar applies “only when the appeal seeks review of discretionary or factual questions, but not when the appeal seeks review of constitutional claims or matters of statutory construction.” See, e.g., Fang Huang v. Mukasey, 523 F.3d 640, 650–51 (6th Cir.2008) (quoting Almuhtaseb v. Gonzales, 453 F.3d 743, 748 (6th Cir.2006)).

The immigration judge determined that the death of Vincent's wife in 2002 did not constitute “changed circumstances” as her death did not have anything to do with his eligibility for asylum. The immigration judge found that Vincent, who arrived in the United States in July 2000, was already out of status and beyond the one-year filing deadline even before his marriage in August 2001. The immigration judge further explained that Vincent's choice to change his status through his marriage to a United States citizen instead of applying for asylum did not constitute an “extraordinary circumstance” justifying or explaining the delay in filing an asylum application. Finally, the immigration judge found that Vincent's health issues did not constitute “extraordinary circumstances” because they did not prevent him from carrying on with his life, including working. Also, the health issues were not documented and he did not file his asylum application until June 2003, long after these health issues were resolved.

Vincent raises various due process claims concerning the untimeliness determination in an attempt to circumvent the jurisdictional bar to review by this Court. Vincent contends that the immigration judge was not a neutral arbiter, and also claims that his due process rights were violated by the judge's bias, based on the immigration judge's determination that the death of Vincent's wife did not constitute an extraordinary circumstance. Specifically, Vincent challenges whether there was factual support for the immigration judge's alleged implication that Vincent's marriage was not bona fide and the factual determination of whether the delay in filing the asylum application was related to his wife's death. Vincent's arguments raise factual issues, not constitutional claims. In any event, the immigration judge did not make any findings about the legitimacy of Vincent's marriage. That fact was irrelevant to the issue of whether the asylum application was timely. Instead, the immigration judge found that Vincent's choice of marrying a citizen and pursuing legal status through the marriage instead of through an asylum application did not constitute an “extraordinary circumstance” excusing the untimeliness. Similarly, challenging the immigration judge's finding that Vincent's wife's death was unrelated to his untimely filing ignores the fact that the immigration judge found that Vincent's asylum application was already untimely when he married a citizen in August 2001. It was then another 10 months—June 2002—before he and his wife began proceedings to adjust his status due to his marriage to a citizen. We see no prejudgment or bias on the part of the immigration judge in making these factual findings or commenting on Vincent's marriage.

Vincent also challenges the determination that there were no extraordinary circumstances justifying his late filing of the asylum application by arguing that applying for an adjustment of his visa status based on his marriage to a citizen was a faster and more-definite path to legal status than an asylum application and it was therefore reasonable for him to pursue that path only and not also file an asylum application. His argument is essentially that he should not be penalized for the fact that his wife died during the visa application and adjustment-of-status proceedings, an event that rendered him ineligible for permanent resident status. While the denial of his visa petition and his adjustment-of-status application are not before us and they were not before the immigration judge or the Board of Immigration Appeals in this proceeding, Vincent may find relief from a recent change in the law. On October 28, 2009, a new law was signed by President Obama that allows a widow(er) of a United States citizen to qualify as an immediate relative regardless of how long the couple was married. Pub.L. 111–83, § 568(c)-(e), 123 Stat. 2142, 2186–88 (2009). The law amends Section 201(b)(2)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1151(b)(2)(A)(i), and removes the requirement that a couple must have been married for at least two years before the citizen-spouse's death in order for the surviving spouse to qualify for permanent resident status as an immediate relative of the late citizen-spouse. Furthermore, Section 568(c)(2)(B) of the new law allows an alien widow(er) of a citizen who died before October 28, 2009, but who did not have a visa petition pending on that date—which would apply to Vincent as his visa petition and adjustment-of-status application were denied in 2003—to file a Form I–360 with the United States Citizenship and Immigration Services that would allow for permanent resident status of the widow(er), provided it is filed by October 28, 2011, and the alien has not remarried. Pub.L. 111–83, § 568(c)(2)(B), 123 Stat. 2142, 2186–87 (2009). All other requirements for the approval of a visa petition remain unaltered, and we make no findings on Vincent's eligibility to file or the potential for approval of a petition should he choose to file one by...