700 F.3d 1060
7th Cir.2012Background
- Vrljicak, a Serbian citizen, sought asylum claiming persecution based on sexual orientation.
- He arrived in the U.S. on April 2, 2009, on a work visa that expired September 30, 2009; he remained in unauthorized status after that date.
- He applied for asylum on July 14, 2010, beyond the one-year statutory deadline.
- The IJ denied asylum as untimely; the BIA agreed on untimeliness but remanded for withholding of removal requirements.
- The court has jurisdiction to review withholding of removal and certain constitutional/legal arguments, but not the Board’s timeliness ruling on asylum.
- Vrljicak argued that 8 C.F.R. §1208.4(a)(5)(iv) unconstitutionally vagues the timeliness exception; the Board rejected this argument.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| May the court review the Board’s timeliness ruling on asylum? | Vrljicak contends the timeliness ruling is reviewable. | The court lacks jurisdiction to review the asylum timeliness conclusion. | No; the court lacks jurisdiction to review the timeliness ruling. |
| Is 8 C.F.R. §1208.4(a)(5)(iv) unconstitutional for vagueness? | Regulation’s 'reasonable' standard is unconstitutionally vague. | Regulation is a valid flexibility provision; not unconstitutionally vague as applied. | Regulation is not unconstitutionally vague as applied. |
| Does the 'reasonable' standard provide constitutional due process while allowing discretion? | Discretionary standards undermine statutory timeliness and due process. | Reasonable standards preserve flexibility and agency discretion within statutory limits. | Standards like 'reasonable' are constitutional and practically beneficial. |
Key Cases Cited
- United States v. Powell, 423 U.S. 87 (1975) (reasonableness vs. rule-based standards in law)
- United States v. Booker, 543 U.S. 220 (2005) (district judges may consider policy concerns within statutory limits)
- Kimbrough v. United States, 552 U.S. 85 (2007) (allowing penological philosophy within statutory bounds)
- Washington State Grange v. Washington State Republican Party, 552 U.S. 442 (2008) (overbreadth/authorization of standards in elections decisions)
- United States v. Salerno, 481 U.S. 739 (1987) (due-process considerations with discretion and standards)
- Parker v. Levy, 417 U.S. 733 (1974) (standards can be used if appropriately applied)
- Civil Service Comm'n v. Letter Carriers, 413 U.S. 548 (1973) (importance of standards in administrative proceedings)
- Jiménez Viracacha v. Mukasey, 518 F.3d 511 (7th Cir. 2008) (jurisdictional limits on reviewing asylum/withholding determinations)