518 F. App'x 370
6th Cir.2013Background
- Petitioner Francisco Gonzalez-Lopez, a Mayan Indian, entered the United States illegally in December 2000.
- He filed an asylum, withholding, and CAT application on December 15, 2008, about eight years after arrival.
- The IJ denied the application, and the BIA affirmed; the Sixth Circuit reviews the petition for relief.
- The court lacks jurisdiction to review the asylum timeliness determination under 8 U.S.C. § 1158(a)(3) when challenging discretionary or factual questions.
- The IJ found no changed or extraordinary circumstances to excuse the late filing; credibility determinations are central to the outcomes for withholding and CAT.
- The REAL ID Act governs credibility determinations for asylum, withholding, and CAT filed after May 11, 2005, applying a totality-of-the-circumstances test.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the asylum timeliness ruling is reviewable | Gonzalez-Lopez contends due process concerns and seeks review of untimeliness. | Government asserts lack of jurisdiction over timeliness/discretionary/ factual questions. | Jurisdictional bar applies; untimeliness not reviewable. |
| Whether the adverse credibility finding is supported | Petitioner contends credibility should not be deemed adverse given his background. | Court relies on inconsistencies and lack of corroboration under the REAL ID Act. | Adverse credibility finding is supported by substantial evidence. |
| Whether the petition for review should be granted on withholding/CAT claims given credibility | Even with credibility issues, relief could be warranted based on other evidence. | Without credible testimony, petitioner cannot meet the criteria for withholding or CAT. | Denied; credibility precludes entitlement to withholding and CAT relief. |
Key Cases Cited
- Vincent v. Holder, 632 F.3d 351 (6th Cir. 2011) (establishes jurisdictional bar for reviewing untimely asylum filings where review involves discretionary/factual questions)
- Kaba v. Holder, 427 F. App’x 504 (6th Cir. 2011) (affirms bar on reviewing certain factual determinations in untimely asylum cases)
- Shrestha v. Holder, 590 F.3d 1034 (9th Cir. 2010) (REAL ID Act allows adverse credibility determinations based on inconsistencies even if not central to the claim)
- Urbina-Mejia v. Holder, 597 F.3d 360 (6th Cir. 2010) (REAL ID Act corroboration rule; availability of corroborating evidence must be determined reasonably)
- El-Moussa v. Holder, 569 F.3d 250 (6th Cir. 2009) (credibility finding precludes entitlement to withholding and CAT when not credible)