Background

The INA requires asylum applicants to file their applications within one year after their arrival in the United States. INA § 208(a)(2)(B). Applicants are excused of this requirement if they can show: 1) "changed circumstances which materially affect the applicant's eligibility for asylum," or 2) "extraordinary circumstances relating to the delay in filing the application." INA § 208(a)(2)(D).

The INA says that courts may not review determinations relating to the one year filing deadline for asylum applications, INA § 208(a)(3). Many courts have applied this bar without a careful analysis of its scope or its relationship to other provisions. However, some important exceptions to this general rule have been carved out. As a result, some BIA determinations regarding the one year deadline and its exceptions are reviewable by the courts of appeals in a petition for review. Section 242(a)(2)(D), added to the INA by the REAL ID Act of 2005, provides courts with jurisdiction over all constitutional claims or questions of law notwithstanding other restrictions on review in the INA. The following cases demonstrate the distinctions the courts make between cases involving legal or constitutional claims and those that do not.

Note: Courts also retain jurisdiction to review applications for withholding of removal and CAT relief, even if the courts lack jurisdiction over the asylum claim

Legal Determination Regarding the Timeliness of the Application

When the BIA's determination turns on its interpretation of the statute or the regulations, courts have found that they have jurisdiction to review the determinations regarding whether the application was filed within one year.

Nakimbugwe v. Gonzales, 475 F.3d 281 (5th Cir. 2007) (reversing BIA's timeliness finding because BIA misinterpreted the regulation regarding when a document is deemed filed).

Diallo v. Gonzales, 447 F.3d 1274 (10th Cir. 2006) (reversing BIA's interpretation of INA § 208(a)(2)(B) for purposes of determining whether petitioner filed within one year).

Due Process Violations

Courts have found that they have jurisdiction to review whether the BIA's evaluation of the one year deadline violates due process.

Mabasa v. Gonzales, 455 F.3d 740 (7th Cir. 2006) (finding jurisdiction to review allegation that BIA failed to provide meaningful review because BIA wrongly analyzed claim as extraordinary circumstances when it should have been analyzed as changed circumstances).

Wijono v. Gonzales, 439 F.3d 868 (8th Cir. 2006) (recognizing that court can review due process violation, but finding claim not exhausted).

Jarbough v. Attorney General, ___ F.3d ___, 2007 U.S. App. LEXIS 8292 (3d Cir. Apr. 11, 2007) (finding jurisdiction over constitutional claims, but concluding that allegations of erroneous fact finding without more failed to state a colorable constitutional violation).

In two pre-REAL ID Act cases, the courts similarly found jurisdiction to review whether the BIA failed to evaluate whether the applicant met the one year deadline or qualified for an exception.

Gjyzi v. Ashcroft, 386 F.3d 710 (6th Cir. 2004) (exercising jurisdiction over due process challenge to the process by which the court determined that asylum application was untimely).

Sagaydak v. Gonzales, 405 F.3d 1035 (9th Cir. 2005) (finding jurisdiction to review whether BIA failed to determine whether the extraordinary circumstances exception should apply).

Purely Factual Determinations

One court has found that when an "IJ's unambiguous mischaracterization of the record raises a question of law," the court has jurisdiction to review the BIA's finding regarding the date the applicant arrived in the United States. Liu v. INS, 475 F.3d 135 (2d Cir. 2006).

However, the courts have held that they lack jurisdiction to review purely factual determinations regarding the one year filing deadline.

Mehilli v. Gonzales, 433 F.3d 86 (1st Cir. 2006)
Hayek v. Gonzales, 445 F.3d 501 (1st Cir. 2006)
Sukwanputra v. Gonzales, 434 F.3d 627 (3d Cir. 2006)
Almuhtaseb v. Gonzales, 453 F.3d 743 (6th Cir. 2006)
Yakovenko v. Gonzales, 477 F.3d 631 (8th Cir. 2007)

Application of Law to Fact

"Questions of law," as employed by INA § 242(a)(2)(D), include the application of statutes or regulations to undisputed facts, sometimes referred to as mixed questions of fact and law. The courts, however, are divided as to whether the changed or extraordinary circumstances exceptions to the one year filing deadline can constitute mixed questions of fact and law that are reviewable.

The Ninth Circuit has offered the broadest interpretation of mixed question of fact and law in the one year filing deadline context.

Ramadan v. Gonzales, 03-74351, 2007 U.S. App. LEXIS 3803, (9th Cir. 2007) (finding that whether undisputed facts qualify as "changed circumstances" is a mixed question of fact and law over which the court has jurisdiction).

Other courts have declined to review the BIA's findings regarding extraordinary or changed circumstances.

Chen v. USDOJ, 471 F.3d 315 (2d Cir. 2006) (finding no jurisdiction because petitioner's claim that "the BIA 'failed to apply the law' does not convert a mere disagreement with the IJ's factual findings and exercise of discretion into a constitutional claim or a question of law").

Vasile v. Gonzales, 417 F.3d 766 (7th Cir. 2005) (finding no jurisdiction because whether petitioner met an exception to the one year deadline is within the Attorney General's discretion and thus is not a legal determination).

Ignatova v. Attorney General, 430 F.3d 1209 (8th Cir. 2005) (citing Vasile, court finds no jurisdiction to review whether petitioner satisfied the extraordinary circumstances exception).

Chacon Botero v. US Attorney General, 427 F.3d 954 (11th Cir. 2005) (citing Vasile, court finds no jurisdiction to review whether petitioner satisfied the extraordinary circumstances exception).

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