Pe Paul GOROMOU, Petitioner v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
Nos. 12-2525, 12-3612.
United States Court of Appeals, Eighth Circuit.
Submitted: May 15, 2013. Decided: July 22, 2013.
721 F.3d 569
III. Conclusion
Accordingly, we affirm the judgment of the district court.
Pe Paul Goromou, Petitioner
v.
Eric H. Holder, Jr., Attorney General of the United States, Respondent.
Nos. 12-2525, 12-3612.
United States Court of Appeals, Eighth Circuit.
Submitted: May 15, 2013.
Decided: July 22, 2013.
Hayley Steptoe, on the brief, Minneapolis, MN, Benjamin Richard Casper, Emily Good, on the brief, Minneapolis, MN, Sheila Stuhlman, St. Paul, MN, for Petitioner.
Leslie McKay, argued, Washington, DC, for Respondent.
Kristofer R. McDonald, Stuart F. Delery, M. Jocelyn Lopez Wright, on the brief, Washington, DC, for Respondent.
Before WOLLMAN, MURPHY, and SMITH, Circuit Judges.
SMITH, Circuit Judge.
Pe Paul Goromou petitions for review of the decision of the Board of Immigration Appeals (BIA) denying his claim for asylum based on the untimeliness of his application. Because we lack jurisdiction to review the BIA‘s determination that Goromou‘s application for asylum was untimely, we dismiss the petition.
I. Background
Goromou is a native and citizen of Guinea who was admitted to the United States
On January 3, 2007, Goromou filed for asylum, but his application was rejected due to a deficiency. Goromou cured the deficiency and refiled his asylum application on January 16, 2007. The Department of Homeland Security (DHS) referred the application to the immigration judge (IJ). DHS commenced removal proceedings against Goromou by filing a “Notice to Appear” (NTA) on July 10, 2008, charging Goromou with being removable pursuant to
A. IJ‘s May 6, 2010 Decision
Before the IJ, Goromou claimed to have suffered persecution in the past based on his ethnicity, religion, political opinion, or imputed political opinion. According to Goromou, he had suffered discrimination in the Guinean military because he is a Christian and is from the Guerze ethnic group from the forest region of Guinea. He also alleged that he suffered past persecution based on his belief in human rights and the rule of law, resulting in his perceived image as an anti-government instigator. According to Goromou, the “gendarmes“—military police officers2—imprisoned and tortured him for five to six days in 1996 because they believed that he was part of an attempted coup d‘etat. He alleged a fear of future persecution based on information he received that his name was placed on a “blacklist” as a suspected dissident attempting to overthrow the government.
Goromou began attending the United States Coast Guard Academy on March 15, 2006. Goromou testified that he learned that he had been blacklisted in Guinea shortly thereafter when he called his wife and she told him about the list. Goromou began fearing return to Guinea at this point. He testified that following the telephone call, he “couldn‘t concentrate.” He “got sick” and “was completely disoriented.” His performance in the training program suffered as a result, and, on May 22, 2006, the United States Coast Guard ordered Goromou to return to Guinea, although he did not depart as ordered. In
Goromou soon began receiving letters from family members and former colleagues in Guinea regarding the danger that he faced back home. On November 26, 2006, he received a letter from his wife informing him that five military men came to their house in Guinea, seeking Goromou. The men searched the home. According to the letter, a few days later, Goromou‘s children went missing.3 The letter also stated that two of his friends in the military had been arrested and were in prison. A December 20, 2006 letter from Goromou‘s nephew confirmed the information in Goromou‘s wife‘s letter.
In his January 3, 2007 asylum application, Goromou explained why he did not file his asylum application within the first year after his arrival, stating, in relevant part:
It was only ... after I received the letter from my wife in the fall of 2006 that I knew I could not return to Guinea as my wife informed me in the letter that police had come to our house to look for me, that our children were missing and that two of my friends had just been arrested. Soon after receiving my wife‘s letter I met a person who explained to me that I needed to apply for asylum.
In her May 6, 2010 decision, after finding Goromou “generally credible,” the IJ analyzed Goromou‘s eligibility for asylum. The IJ noted that an “alien [must] demonstrate ‘by clear and convincing evidence that the [asylum] application has been filed within 1 year after the date of the alien‘s arrival in the United States.‘” (Quoting
[a]n application for asylum of an alien 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 within the period specified in [§ 1158(a)(2)(B)].
The IJ concluded that Goromou did not qualify for either exception to the one-year filing deadline. “The term ‘extraordinary circumstances’ ... refer[s] to events or factors directly related to the failure to meet the 1-year deadline. Such circumstances may excuse the failure to file within the 1-year period as long as the alien filed the application within a reasonable period given those circumstances.”
Although [Goromou] alleges that he was depressed and this kept him from filing, he has not provided documentation of his depression aside from a letter written by Mamady Kaba, a friend of [Goromou], who states that [Goromou] was depressed when he met him, and a report from the Center for Victims of Torture diagnosing [Goromou] with Post-Traumatic Stress Disorder (“PTSD“) and Major Depressive Disorder on April 26, 2007. (Ex. Ex. 14; 15 at 101). There is no documentation of depression, isolation, or PTSD for the period between [Goromou‘s] last entry to the United States and the filing of his asylum application. Therefore, the Court does not find that depression, isolation or PTSD resulted in [Goromou‘s] failure to apply for asylum within one year of his entry.
[Goromou‘s] nonimmigrant status ended when he was dismissed from his training program and ordered to return to Guinea, and not when the program officially ended. [Goromou] did not file for asylum until January 3, 2007. (Ex. 15 at 337-38). Then his application was rejected and re-filed on January 16, 2007, which was almost eight months after he violated his nonimmigrant status and a little over two years after he entered the United States.4 Therefore, the Court does not find that [Goromou] filed within a reasonable time after the end of his legal status in the United States.
As to the changed-circumstances exception, the regulations provide that “changed circumstances” “include ... [c]hanges in the applicant‘s circumstances that materially affect the applicant‘s eligibility for asylum, including changes in applicable U.S. law and activities the applicant becomes involved in outside the country of feared persecution that place the applicant at risk.”
Although the IJ found that Goromou “established that changed circumstances existed when he learned that his name was on a blacklist in the spring of 2006, some time after March 15, 2006,” it concluded that Goromou failed to “establish[ ] that he filed his application for asylum within a reasonable time of learning about the changed circumstances,” explaining that Goromou
testified that he called his wife sometime after March 15, 2006, and before May 22, 2006. It was during this conversation that [Goromou] learned that his name was on a blacklist in Guinea. [Goromou] testified that when he left the Coast Guard training on May 22, 2006, he knew that he could not return to Guinea, so he moved to Minnesota. [Goromou] did not file for asylum until January 3, 2007. (Ex. 15 at 337-38). His application was rejected and was not refiled until January 16, 2007. Thus, [Goromou] waited approximately nine months to file his asylum application. The Court does not believe that applying for asylum nine months after learning of changed circumstances is within a reasonable amount of time. See
8 C.F.R. § 1208.4(a)(4) .
Although the IJ found Goromou ineligible for asylum, she granted him withholding of removal.5 Because the IJ granted Goromou‘s application for withholding of removal, she did not address whether Goromou was entitled to CAT relief.
B. IJ‘s June 2, 2010 Order on Motion for Reconsideration
Goromou filed a motion for reconsideration, arguing that the IJ erroneously found him ineligible for asylum. Goromou‘s motion made two arguments. First, Goromou argued that the IJ erred as a matter of fact in finding that he missed the one-year filing deadline by a little over two years instead of six weeks. The IJ found that Goromou was correct and that she had erred in calculating the time between the one-year deadline and his filing date. According to the IJ, Goromou entered the United States on December 1, 2005, and attempted to file for asylum on January 3, 2007, although he had to re-file after the application was rejected. If January 3, 2007, is considered as the filing date, the IJ found that Goromou filed for asylum approximately 33 days after the one-year filing deadline. If January 16, 2007, is considered as the filing date, the IJ found that Goromou filed for asylum approximately 46 days after the one-year filing deadline. Therefore, regardless of which date the IJ used, Goromou filed after the one-year filing deadline.
Second, Goromou asserted that the IJ erred as a matter of law in concluding that he did not file for asylum within a reasonable time after his non-immigrant status ended and when it concluded that he failed
C. BIA‘s Decision
Goromou appealed the IJ‘s denial of his asylum application on the ground that he failed to present changed or extraordinary circumstances to justify missing the one-year filing deadline. On May 30, 2012, the BIA dismissed Goromou‘s appeals of the IJ‘s May 6, 2010 decision and her June 2, 2010 decision.
First, the BIA “agree[d] with the Immigration Judge that any changed circumstances materially affecting [Goromou‘s] asylum claim and excusing his late filed asylum application ar[o]se from the telephone call from his spouse in the Spring of 2006 rather than the letter of November 2006.” After “agree[ing] [with the IJ that] there were changed circumstances of which [Goromou] was aware from the time he received the telephone call in the Spring of 2006,” the BIA addressed “whether [Goromou] filed his asylum application within a reasonable time from this change.” The BIA “agree[d] with the Immigration Judge that [Goromou‘s] delay was not reasonable,” stating:
As discussed more fully below concerning the argued extraordinary circumstances presented by [Goromou], the mental problems or isolation [Goromou] faced were not significantly different from others seeking asylum in the United States. From Spring of 2006, he was on notice of possible persecution in Guinea and he was under military orders to return there, but he did not file his asylum application until January 2007. We agree with the Immigration Judge that under the particular circumstances of this case, the delay in filing after the discovery of the changed circumstances was not reasonable. See Matter of T-M-H- & S-W-C-, 25 I. & N. Dec. 193 (BIA 2010).
(Emphasis added.)
Second, the BIA “also agree[d] that [Goromou] has not presented extraordinary circumstances to allow his late filed application for asylum.” Specifically, the BIA “agree[d] with the Immigration Judge that from May 22, 2006, [Goromou] was on notice that he was required to leave the United States or file an asylum application.” The BIA noted that Goromou delayed filing his asylum application “over 5 months from the July 19, 2006, expiration of his status, but over 7 months from the military‘s termination of his participation in the program and his delivery to the airport for his departure from the United States.” Based on the length of the delay, the BIA concluded that “the delay was not reasonable.” The BIA also “disagree[d]” with Goromou‘s argument “that he was suffering from mental incapacity and isolation and that this also presents extraordinary circumstances which delayed his filing.” The BIA “agree[d] with the Immigration Judge that [Goromou‘s] health and isolation issues do not present extraordinary circumstances for his failure to file his asylum application in a timely manner.”
In addition to dismissing the appeals of the IJ‘s decisions, the BIA remanded the case to the IJ, pursuant to
Goromou petitions this court for review of the BIA‘s decision, arguing that the BIA “committed two legal errors in denying [his] asylum application as untimely filed.”6
Congress has generally precluded the federal courts from exercising jurisdiction to review a determination of the Attorney General that an application for asylum was untimely. See
A. Conflation of Changed-Circumstances and Exceptional-Circumstances Exceptions
According to Goromou, “[i]n determining that [he] had not filed his application within a reasonable time after the changed circumstance, the BIA held that because [his] PTSD and depression were not extraordinary circumstances his delay after changed circumstances was unreasonable.” (Emphases added.) Goromou thus avers
“Any alien who is physically present in the United States or who arrives in the United States ... irrespective of such alien‘s status, may apply for asylum in accordance with [
[a]n application for asylum of an alien 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 within the period specified in subparagraph (B).
The regulations to
(4) Changed circumstances.
(i) The term “changed circumstances” in
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*
*
(B) Changes in the applicant‘s circumstances that materially affect the applicant‘s eligibility for asylum, including changes in applicable U.S. law and activities the applicant becomes involved in outside the country of feared persecution that place the applicant at risk....
*
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(ii) The applicant shall file an asylum application within a reasonable period given those “changed circumstances.” If the applicant can establish that he or she did not become aware of the changed circumstances until after they occurred, such delayed awareness shall be taken into account in determining what constitutes a “reasonable period.”
(5) The term “extraordinary circumstances” in
(i) Serious illness or mental or physical disability, including any effects of persecution or violent harm suffered in the past, during the 1-year period after arrival....
In support of his argument that the BIA legally erred by “requir[ing] [him] to show both changed and extraordinary circumstances to qualify for an exception to the one[-]year filing deadline,” Goromou cites the following passage from the BIA‘s decision:
As discussed more fully below concerning the argued extraordinary circumstances presented by [Goromou], the mental problems or isolation [Goromou] faced were not significantly different from others seeking asylum in the United States. From Spring of 2006, he was on notice of possible persecution in Guinea and he was under military orders to return there, but he did not file his asylum application until January 2007. We agree with the Immigration Judge that under the particular circumstances of this case, the delay in filing after the discovery of the changed circumstances was not reasonable. See Matter of T-M-H- & S-W-C-, supra.
(Emphasis added.)
The aforementioned paragraph, however, cannot be read in isolation from the remainder of the BIA‘s decision or the decision of the IJ, whose findings and reasoning the BIA agreed with. See Gutierrez-Vidal v. Holder, 709 F.3d 728, 731-32 (8th Cir. 2013) (“We review the BIA‘s decision, as it is the final agency action, but to the extent that the BIA adopted the findings or reasoning of the IJ, we also review the IJ‘s decision as part of the final agency action.” (quotation and citation omitted)). Reading the BIA‘s decision in conjunction with the IJ‘s decision, we conclude that the BIA did not require Goromou to show both changed and extraordinary circumstances.
First, the IJ separately analyzed both exceptions and concluded that Goromou qualified for neither. As to the extraordinary-circumstances exception, the IJ found that depression did not prevent Goromou from applying for asylum within one year of his entry, nor did isolation or PTSD. Additionally, even assuming that these illnesses were “extraordinary circumstances,” the IJ concluded that Goromou did not “file[ ] within a reasonable time after the end of his legal status in the United States.”
As to the changed-circumstances exception, the IJ concluded that although Goromou “established that changed circumstances existed when he learned that his name was on a blacklist in the spring of 2006, some time after March 15, 2006,” he failed to “establish[ ] that he filed his application for asylum within a reasonable time of learning about the changed circumstances.” Goromou called his wife “sometime after March 15, 2006, and before May 22, 2006,” but Goromou did not file his first asylum application until January 3, 2006. “Thus, [Goromou] waited approximately nine months to file his asylum application. The [IJ] d[id] not believe that applying for asylum nine months after learning of changed circumstances is within a reasonable period of time.” As discussed infra, the IJ also concluded that Goromou failed to “establish[ ] that changed circumstances existed when he received the letter from his wife on approximately November 26, 2006,” because “both his original claim of fear in spring 2006 and his alleged new fear in November 2006 are on account of the same ground and from the same persecutors.”
Thereafter, the BIA included the paragraph Goromou cites as evidence that the BIA required him to show both changed and extraordinary circumstances. But this is not a fair reading of the decision. We agree with the government that, by referencing Goromou‘s “extraordinary circumstances” argument regarding his mental problems and isolation in the context of the “changed circumstances” exception, the BIA was not “conflating” the two exceptions; instead, it was finding that Goromou‘s mental condition did not excuse the untimeliness of his asylum application under either exception. Moreover, the BIA agreed with the IJ that Goromou unreasonably delayed filing his asylum application after the spring 2006 telephone call; therefore, he did not file within a reasonable time of the changed circumstances. The BIA then separately analyzed Goromou‘s “extraordinary circumstances” argument, stating, “We also agree that [Goromou] has not presented extraordinary circumstances to allow his late filed application for asylum.” The BIA analyzed the “reasonableness” inquiry first, concluding that “[u]nder the particular circumstances here, the delay was not reasonable.” Then, the BIA addressed Goromou‘s claim that “he was suffering from mental incapacity and isolation and that this also presents extraordinary circumstances which delayed his filing.” The BIA “agree[d] with the Immigration Judge that [Goromou‘s] health and isolation issues do not present extraordinary circumstances for his failure to file his asylum application in a timely manner.”
The BIA committed no legal error because it did not require Goromou to show both “changed circumstances” and “extraordinary circumstances” to excuse his untimeliness. Instead, a fair reading of the BIA‘s decision is that it independently analyzed both exceptions and agreed with the IJ that Goromou met neither of them.
B. “Material” Change in Circumstances
Goromou also argues that the BIA legally erred in holding that the November 2006 letter was not “material” to his asylum claim because the letter “established an objectively reasonable fear of imminent persecution specific to him and his family.” Goromou maintains that “[w]hether undisputed changed circumstances ‘materially affect’ an applicant‘s eligibility for asylum eligibility under
“Under the statutory framework, however, the decision whether such [changed] circumstances exist is a discretionary judgment of the Attorney General.” Ignatova v. Gonzales, 430 F.3d 1209, 1214 (8th Cir. 2005) (citing
III. Conclusion
For the foregoing reasons, we lack jurisdiction and therefore dismiss Goromou‘s petition for review.
MURPHY, Circuit Judge, dissenting.
I agree with the majority that the board did not conflate the “changed” and “extraordinary” circumstances requirements, but I do disagree with the conclusion that the board‘s decision that Goromou‘s November letter was not a “material” change in circumstances cannot be reviewed. That decision rested on a pure legal error which we have jurisdiction to review.
Though courts generally lack jurisdiction to review determinations regarding exceptions to the one year asylum deadline,
A fact is material if it is “predictably capable of affecting [or] had a natural tendency to affect [ ] the official decision.” Kungys v. United States, 485 U.S. 759, 771, 108 S. Ct. 1537, 99 L. Ed. 2d 839 (1988). The majority characterizes the materiality inquiry as one of applying law to facts, ante at 579-80 (citing Abraham v. Holder, 647 F.3d 626, 632 (7th Cir. 2011)), and that therefore the board‘s decision is a discretionary judgment insulated from our review. I agree that if the board had decided that the November letter was not “predictably capable of affecting [or] had a natural tendency to affect” the validity of Goromou‘s asylum claim, Kungys, 485 U.S. at 771, we would not be able to review that decision.
The problem in this case is that the board made no such finding. Nowhere in its decision does the board analyze the November letter under the proper materiality standard, making it impossible to determine the legal basis for the board‘s decision. See Omondi v. Holder, 674 F.3d 793, 800-01 (8th Cir. 2012) (“The IJ or BIA
This was an erroneous interpretation of what changes qualify as “material,” and thus was purely an error of law. Nothing in the statute or our precedents requires that changed circumstances provide an additional ground for relief, only that they “materially affect the applicant‘s eligibility for asylum.”
Had Goromou submitted his asylum application prior to receiving the “nonmaterial” November letter, he likely would have lost. Without the letter, Goromou‘s asylum case rested solely on (1) an uncorroborated phone call alleging he was on a “black list” of indeterminate date based on events that had occurred a decade prior, and (2) that he had been simultaneously scheduled for execution while being sent to America for a prestigious military training exercise. The IJ stated that she found this sequence of events “strange” and “slightly implausible.” By the IJ‘s own admission, however, it was the additional corroborating evidence, including the November letter, that convinced her to believe Goromou‘s story, and was likewise essential in proving to the IJ that Goromou would “more likely than not ... face persecution if he returns to Guinea.”
Adopting the board‘s novel definition of “material” could have the perplexing consequence of forcing an applicant to file an unsubstantiated asylum claim in similar circumstances because the evidence that would actually establish an objective fear of future persecution would not qualify as material. If the board‘s error were characterized as one of discretion rather than law, it is unclear if there could ever be a case where we could review and correct a mistaken interpretation of the statutory term “materially.”
Section 1252(a)(2)(D) shields discretionary judgments by the board from reversal by the appellate courts, preserving appellate review only for legal and constitutional errors. It is thus unsurprising that immigrants will try to “cloak[] an abuse of discretion argument in constitutional [or legal] garb” in an attempt to access judicial review. Meraz-Reyes v. Gonzales, 436 F.3d 842, 843 (8th Cir. 2006). On the other hand, opposing counsel may characterize legal errors as discretionary judgments in order to insulate such mistakes from review.
Faithful application of the REAL ID Act requires careful review of the whole record to distinguish legal errors from matters of discretion. Here, the board‘s mistake was of a purely legal character. Once the IJ determined that the letter impacted Goromou‘s credibility and his likelihood of facing future persecution, materiality was established. The board‘s decision rests wholly on its erroneous interpretation that
SMITH
Circuit Judge