Ramadan v. GonzalesRamadan v. Gonzales
- Reporters:
- Before:
- Harry Pregerson, Michael Daly Hawkins, Sidney R. Thomas (per curiam)
COUNSEL
Peter D. Keisler, Richard M. Evans, Carl J. McIntyre, Jr., David J. Kline, Bryan S. Beier, Washington, D.C., for the respondent.
Lucas Guttentag, Jennifer Chang, Oakland, California; Lee Gelernt, Omar C. Jadwat, New York, New York; Mary Kenney, Washington, D.C., for amici curiae American Civil Liberties Union Foundation Immigrants’ Rights Project and American Immigration Law Foundation.
With the granting of the petition for rehearing, the opinion filed on November 2, 2005, is withdrawn and the attached opinion is hereby filed. No further petitions for rehearing or rehearing en banc will be entertained.
OPINION
PER CURIAM:
We granted rehearing in this case to reconsider the scope of our jurisdiction under the Real ID Act,
We now hold that our jurisdiction over “questions of law” as defined in the Real ID Act includes not only “pure” issues of statutory interpretation, but also application of law to undisputed facts, sometimes referred to as mixed questions of law and fact. See Pullman-Standard v. Swint, 456 U.S. 273, 289 n.19 (1982) (defining mixed questions as those “in which the historical facts are admitted or established, the rule of law is undisputed, and the issue is whether the facts satisfy the statutory standard, or to put it another way, whether the rule of law as applied to the established facts is or is not violated“). By implying a fixed dichotomy between fact and law, our brief initial opinion inadvertently failed to consider an important category of cаses—those that raise mixed questions of law and fact. We join the Second Circuit in holding that “questions of law” is broader than just statutory interpretation. Chen v. Gonzales, 471 F.3d 315, 326-27 (2d Cir. 2006) (“We construe the intent of Congress’s restoration under the Real ID Act rubric of ‘constitutional claims or questions of law’ to encompass the same types of issues that courts traditionally exercised in habeas review over Executive detentions“). Our conclusion is compelled by the congressional intent underlying the enactment of the Real ID Act and principles of statutory interpretation, most importantly the doctrine of constitutional avoidance. This renewed discussion is primarily framed by the Supreme Court’s decision in INS v. St. Cyr, 533 U.S. 289 (2001), and the subsequеnt enactment of the Real ID Act in response to that decision.
In reassessing our opinion in view of these considerations, we conclude that we have jurisdiction to review Ramadan’s challenge to the IJ’s determination that Ramadan failed to show changed circumstances to excuse the untimely filing of her application for asylum. Conducting such review, we hold that the record does not compel the contrary conclusion.
Our jurisdiction over Ramadan’s application for withholding of removal was unaffected by our interpretation of section 106, and with respect to withholding, we continue to find that “the record does not compel the conclusion that it is ‘more likely than not’ that Ramadan would suffer persecution if returned to Egypt.” Ramadan, 427 F.3d at 1223. We therefore deny the petition for review as to both asylum and withholding of removal.
I
We detailed the facts and procedural history of this case in our prior opinion. Id. at 1220. Lead petitioner Neama El Sayed Ramadan is a native and citizen of Egypt. She earned degrees in physical education and rhythmic gymnastics from the University of Alexandria and then began teaching gymnastics and aerobics in Alexandria. Believing that “a woman should have her own opinion and should have her own way of living,” Ramadan dressed in western attire and was consistently outspoken about her beliefs. As a result, she had problems with Islаmic men, receiving threats in several instances. In 1999, Ramadan was again threatened, this time with the kidnaping of her son. This prompted her to leave Egypt for the United States with her son, where her husband and other family lived. Id. She arrived in September 1999. Id.
In February 2001, Ramadan attended a meeting with some 100-120 other people in San Francisco, where she participated in a discussion about women’s liberty and role in Egypt. Id. at 1221. Shortly thereafter, Ramadan’s parents and a friend in Egypt informed her that, because of the opinions she had expressed at the San Francisco meeting, someone in Egypt was looking for her and making threats as to what would happen if she were to return to Egypt. Id.
In June 2001, Ramadan filed applicаtions for asylum and withholding of removal, claiming that she feared returning to Egypt on the basis of the threats she had experienced both before and after her arrival in the United States. Both applications were denied by an IJ.1 Ramadan conceded that she failed to file her asylum application within one year of entry into the United States, as is required under
II
As always, “we ‘have jurisdiction to determine whether jurisdiction exists.’” Flores-Miramontes v. INS, 212 F.3d 1133, 1135 (9th Cir. 2000) (quoting Aragon-Ayon v. INS, 206 F.3d 847, 849 (9th Cir. 2000)). Our jurisdiction to review the agency’s denial of Ramadan’s application for withholding of removal is conferred by
[1] The issue of our jurisdiction to review the denial of Ramadan’s asylum application is more complicated. Under
[2] Whether we can review the IJ’s determination that Ramadan had not shown such changed circumstances depends on the extent to which section 106 of the Real ID Act restores our jurisdiction. Prior to the passage of the Real ID Act,
meaning of the Real ID Act.” Id. at 1220. We now hold that “questions of law,” as it is used in section 106, extends to questions involving the application of statutes or regulations to undisputed facts, sometimes referred to as mixed questions of fact and law. Further, we hold that the “changed circumstances” question presented by Ramadan’s petition is a question of the application of a statutory standard to undisputed facts, over which we have jurisdiction.
III
We are mindful of the legal development—both legislative and judicial—that has led to the current constraints on judicial review of immigration decisions, presently embodied in the Real ID Act. Notably, Congress consciously deemed the history of judicial review over immigration decisions relevant to the enactment
Until the passage of the 1952 Immigration and Nationality Act (“INA“), a habeas petition was the only mechanism by which an alien could challenge a deportation order. Zank v. Landon, 205 F.2d 615, 616 (9th Cir. 1953) (noting that “a deportation may be attacked only in a habeas corpus proceeding“); Heikkila v. Barber, 345 U.S. 229, 235 (1953) (“Now, as before, [the appellant] may attack a deportation order only by habeas corpus.“). After 1952, the judicial review provisions of the Administrative Procedure Act (“APA“) were made applicable to cases arising under the INA. Shaughnessy v. Pedreiro, 349 U.S. 48 (1955). “Habeas Corpus came to be employed as a nominal vehicle for judicial review under the standards of the APA, largely interchangeable with other procedural vehicles, and the focus on the constitutional minimum faded into history.” Gerald L. Neuman, Habeas Corpus, Exec-
utive Detention, and the Removal of Aliеns, 98 Colum. L. Rev. 961, 1020 (1998). From 1953 to 1961, habeas corpus remained the primary remedy in immigration cases.
With enactment of amendments to the INA in 1961, Congress established a base grant of judicial review through petitions for review of final deportation orders, and established a new specific habeas remedy in INA § 106(a)(10). Congress specified that deportation orders were to be challenged via petitions for review in the courts of appeals, effectively streamlining such review. Act of Sept. 26, 1961, Pub. L. No. 87-301, § 5, 75 Stat. 651 (codified as amended at
However, in 1996 Congress altered this scheme of review, enacting the Antiterrorist and Effective Death Penalty Act (“AEDPA“). Pub. L. No. 104-13, 110 Stat. 1214 (1996). Section 440(a) of the Act precluded all judicial review of final removal orders of aliens deported for committing certain types of crimes, also known as “criminal aliens.” See AEDPA § 440(a),
In INS v. St. Cyr, the Supreme Court determined the scope of judicial review in a post-AEDPA/IIRIRA regime in light of the requirements of the Suspension Clause of the Constitution.5 533 U.S. 289 (2001). St. Cyr, an alien convicted of an aggra-
vated felony, petitioned for habeas review of a “pure” question of law in district court under the general federal hаbeas corpus provision,
[3] Importantly, St. Cyr helped define the historical scope of questions of law, stating: “[I]ssuance of the writ . . . encompassed detentions based on errors of law, including the erroneous application or interpretation of statutes.” Id. at 302
(emphasis added). See also Chen, 471 F.3d at 327-28 (relying on same passage and discussing the history of habeas review). Further, the Court cited Mahler v. Eby, 264 U.S. 32, 46 (1924)—which the Court characterized as resolving the question of “whether the absence of an explicit factual finding that the aliens were ‘undesirable’ invalidated the warrant of deportation“—to support its proposition that courts would answer questions of law in determining the legality of an Executive detention during the pre-INA regime. St. Cyr, 533 U.S. at 306-07 n.29. St. Cyr therefore indicates that mixed questions of fact and law—those involving an application of law to undisputed fact—should be provided meaningful judicial review, lest serious constitutional questions be raised. Moreover, under the pre-INA habeas regime, mixed questions of law and fact have been historically reviewable on habeas, further supporting the proposition that such questions are entitled to some form of review. See Gerald L. Neuman, The Rеal ID Act and the Suspension Clause, 10-20 Bender’s Immigr. Bull. 1 (2005) (Oct. 15, 2005) (“[C]ase law of the pre-INA period and post-St. Cyr cases in the courts of appeals illustrate that the traditional scope of review also extends to ‘mixed’ questions of law and fact, in the sense of the application of legal standards to the facts as found by the administrative agency.“) (citing Mahler; Delgadillo v. Carmichael, 332 U.S. 388 (1947) (habeas review of deportation order determining that a noncitizen’s return to the United States under “fortuitous and capricious” circumstances did not constitute an “entry“); Hansen v. Haff, 291 U.S. 559 (1934) (determining on habeas review whether an alien entered for an “immoral purpose“); Cadet v. Bulger, 377 F.3d 1173 (11th Cir. 2004); Bakhtriger v. Elwood, 360 F.3d 414 (3d Cir. 2004); Wang v. Ashcroft, 320 F.3d 130 (2d Cir. 2003)).
[4] St. Cyr left instructions for both Congress and the lower courts, with a view to conform with the requirements of the Suspension Clause: Congress was required to provide adequate and effective review for all aliens subject to removal; we are required to interpret congressional enact-
ments restricting the right to review consistent with the mandates of the Suspension Clause. Congress assumed this task in enacting the Real ID Act, with the explicit intent to give “every alien one day in the court of appeals, satisfying constitutional concerns,” H.R. Rep. No. 109-72, at 175 (2005), as reprinted in 2005 U.S.C.C.A.N. 240, 299, and we are compelled to interpret the Act accordingly. See Chen, 471 F.3d at 326-27 (noting Congress’ intent to comply with St. Cyr in enacting the Real ID Act).
[5] The Real ID Act repeals general habeas corpus jurisdiction over orders of removal, but provides us jurisdiction over “questions of law.” However, the judicial review clause of the Act does not address whether we have jurisdiction over mixed questions of law and fact—those situations in which the historical facts and applicable legal standard are undisputed but the agency’s application of those facts to law are at issue. Real ID Act § 106(a)(1)(A)(iii) (codified at
nal adherence to St. Cyr’s constitutional mandates, and because preclusion of judicial review over mixed questions of law and fact would raise serious constitutional questions under St. Cyr, the legislative history indicates that Congress intended to grant review over such questions. Cf. Chen, 471 F.3d at 378-28 (holding that because historical habeas review extended beyond statutory construction, as indicated in St. Cyr, the scope of “questions of law” of the Real ID Act was similarly extended). Indeed, the Conference Report explicitly envisions judicial review of mixed questions of law and fact, stating: “When a court is presented with a mixed question of law and fact, the court should analyze it to the extent that there are legal elements, but should not review any factual elements.” Id. at 175. This statement squarely fits within our holding, which mandates review only when the underlying facts arе undisputed.
[6] It is important to note that the Conference Report also states that “the word
Conference report refers to ‘statutory construction questions,’ we do not interpret that reference to be exhaustive, merely illustrative.“).
As indicated by our discussion of St. Cyr, our conclusion is compelled by principles of constitutional avoidance, precluding a constitutionally suspect alternative. Cf. St. Cyr, 533 U.S. at 301 n.13 (“The fact that this Court would be required to answer the difficult question of what the Suspension Clause protects is in and of itself a reason to avoid answering the constitutional questions that would be raised by concluding that review was barred entirely.“). See also Kamara v. Atty. Gen., 420 F.2d 202, 211 & n.5 (3d Cir. 2005). The Supreme Court has been careful to construe statutes in light of the Suspension Clause. See, e.g., St. Cyr, 533 U.S. at 299-300 (“[I]f an otherwise acceptable construction of a statute would raise serious constitutional problems, and where an alternative interpretation of the statute is ‘fairly possible,’ we are obligated to construe the statute to avoid such problems.” (quoting Crowell v. Benson, 285 U.S. 22, 62 (1932))).
[7] We therefore conclude that the phrase “questions of law” as it is used in section 106 of the Real ID Act includes review of the application of statutes and regulations8 to undisputed historical facts. This construction is amply supported by the statute and legislative history, and a narrower interpretation would pose a serious Suspension Clause issue.
IV
Before turning to the specifics of Ramadan’s claim, we note that this case does not involve a challenge to the agency’s exercise of discretion. Section 106 does not restore juris-
diction over discretionary determinations. Because, however, review of such determinations was not traditionally available on habeas review, there is no Suspension Clause problem. See St. Cyr, 533 U.S. at 307 (referring to the “strong tradition in habeas corpus law . . . that subjects the legally erroneous failure to exercise discretion, unlike a substantively unwise exercise of discretion, to inquiry on the writ” (quoting Gerald L. Neuman, Jurisdiction and the
[8] The words “to the satisfaction of the Attorney General” do not render the changed circumstances determination discretionary. Instead, this phrase is a specification of who is to make the decision, rather than a characterization of that decision itself. We come to this conclusion for several reasons. First, when Congress wants to place something within the Attorney General’s discretion, it either uses that word or a phrase that the courts have held to function in this way. See Kalaw v. INS, 133 F.3d 1147, 1152 (9th Cir. 1997) (analyzing the former
izing as discretionary the Attorney General’s determination under
Second, comparison to another statutory section further supports that the particular phrase “to the satisfaction of the Attorney General” does not trigger the Attorney General’s discretion. Consider
The Attorney General may, in his discretion, waive the application of subparagraphs (A)(i)(I), (B), (D), and (E) of subsection (a)(2) and subparagraph (A)(i)(II) of such subsection insofar as it relates to a single offense of simple possession of 30 grams or less of marijuana if—
(1)(A) in the case of any immigrant it is established to the satisfaction of the Attorney General that—
(i) the alien is inadmissible only under subparagraph (D)(i) or (D)(ii)of such subsection or the activities for which the alien is inadmissible occurred morе than 15 years before the date of the alien’s application for a visa, admission, or adjustment of status . . .
Third, this conclusion is consistent with our precedent on the nature of discretionary determinations. As we stated in Kalaw:
The plain language of IIRIRA precludes our direct review of the Attorney General’s discretionary decisions. However, assessing some of the aspects of statutory eligibility for suspension of deportation requires application of law to factual determinations. As to those elements of statutory eligibility which do not involve the exercise of discretion, direct judicial review remains.
133 F.3d at 1150. Even there, where the statute explicitly designated the overall determination to be discretionary, we recognized that the application of law to fact does not entail the exercise of discretion. We held that only those determinations that can properly be characterized as “subjective,” or “dependent . . . upon the identity of the person or entity examining the issue,” such as “whether an alien has good moral character,” were “discretionary” and beyond this court’s review under IIRIRA’s transitional jurisdictional provisions. Id. at 1151-52.
There is a significant difference between assessing the quality of an alien’s moral character and whether changed circumstances have materially affected an alien’s eligibility for asylum. While both determinations involve the exercise of judgment, the changed circumstances determination does not “depend[ ] upon the identity of the person or entity examining the issue,” but rather is less value-laden and does not reflect the decision maker’s beliefs in and assessment of worth and principle.11
V
[9] We now turn to Ramadan’s claims. Ramadan’s challenge to the IJ’s determination that Ramadan failed to show changed circumstances is a reviewable mixed question of lаw and fact. The Supreme Court has defined such questions as those in
puted; we only review whether the IJ appropriately determined that the facts did not constitute “changed circumstances” as defined by immigration law. Although we have jurisdiction to hear Ramadan’s petition, we hold that the record does not compel the conclusion that she has shown “changed circumstances” so that her asylum application should have been considered notwithstanding its late filing. As for the merits of her application for withholding of removal, unaffected by thе jurisdictional bar, we continue to hold that the record does not compel the conclusion that Ramadan has shown that it is more likely than not that she would be persecuted were she to return to Egypt.
A
[10] According to
The term “changed circumstances” in section 208(a)(2)(D) of the Act shall refer to circumstances materially affecting the applicant’s eligibility for asylum. They may include, but are not limited to:
(A) Changes in conditions in the applicant’s country of nationality . . .
(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; or
(C) In the case of an alien who had previously been included as a dependent in another alien’s pending asylum application, the loss of the spousal or parent-child relationship to the principal applicant through marriage, divorсe, or attainment of age 21.
[11] To support the notion of “changes” in her “activities,” Ramadan argues that the harassment that she experienced in Egypt was on account of her failure to conform to Muslim tradition, particularly, her Western attire and her oсcupation as an aerobics instructor, and that the persecution that she fears now is on account of the political opinions that she has expressed publicly since her arrival in the United States. The record does not support this distinction. During her hearing before the IJ, Ramadan testified that she had problems from “mostly the Islamic groups” because of her “outspoken” nature:
A woman should have her own opinion and dependent’s opinion should have a position in the society to choose her way of thinking and way of vindication. A woman should have her own way of thinking. She should be liberal from all the pressures that surrounding her from male in that society.
This testimony belies Ramadan’s claim that the harassment she experienced in
lim extremists. The record, therefore, does not compel the conclusion that Ramadan showed changed circumstances to excuse the late filing of her asylum application. We deny the petition for review with respect to the asylum claim.
B
[12] To establish eligibility for mandatory relief of withholding of removal, an alien must show that it is “more likely than not” that he or she will suffer persecution on account of race, religion, nationality, membership in a particular social group or political opinion. Chand v. INS, 222 F.3d 1066, 1079 (9th Cir. 2000). Ramadan concedes that the harassment that she suffered in Egypt does not rise to the level of persecution, and that she is therefore not entitled to a presumption of a well-founded fear of future persecution.
PETITION DENIED.
Notes
Real ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231, codified as amended atNothing in . . . any other provision of this chapter (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals in accordance with this section.