Nеama El Sayed RAMADAN; Gasser Hisham El Gendy, Petitioners, v. Peter D. KEISLER, Acting Attorney General, Respondent.
No. 03-74351.
United States Court of Appeals, Ninth Circuit.
Sept. 28, 2007.
504 F.3d 973
We therefore conсlude that Sullivan‘s supervised release period began on February 21, 2001, when he was transferred to a Pre-Release Center. As a result, Sullivan‘s supervised release period expired before the U.S. Probation Office filed a petition for revocation of supervised release on August 31, 2006. The district court therefore hаd no authority to revoke Sullivan‘s supervised release. See United States v. Morales-Alejo, 193 F.3d 1102, 1104 (9th Cir.1999).
REVERSED.
Elias Z. Shamieh, Law Offices of Elias Z. Shamieh, Amos Lawrence, San Francisco, CA, Lee Gelernt, New York City, for Petitioners.
Ronald E. LeFevre, Chief Counsel, Office of the District Counsel, Department of Homeland Security, San Francisco, CA, Richard M. Evans, Esq., Carl H. McIntyre, Jr., Bryan S. Beier, U.S. Dеpartment of Justice, Washington, DC, for Respondent.
Before HARRY PREGERSON, MICHAEL DALY HAWKINS, and SIDNEY R. THOMAS, Circuit Judges.
ORDER
The panel has voted to deny the petition for rehearing and the petition for rehearing en banc. The full court has been advised of the petition for rehearing en banc. A judge of the court requested a vote on whether to rehear the case en banc. However, the en banc call failed to receive a majority of votes of the nonrecused active judges in favor of en banc consideration.
The petitions for rehearing and rehearing en banc are denied.
O‘SCANNLAIN, Circuit Judge, joined by KOZINSKI, KLEINFELD, TALLMAN, BYBEE, BEA, CALLAHAN, M. SMITH, JR., and IKUTA Circuit Judges, dissenting from the denial of rehearing en banс:
In a feat of interpretive creativity, the Court in this case has transformed a discretionary determination of an Immigration Judge (“IJ“) into a question of law, thereby claiming jurisdiction over a swath of immigration cases hitherto beyond our purview. Were such jurisdiction in fact given to us by Congress, we would be obligated to accept thе task. But Congress has expressly withdrawn our power to review such discretionary determinations, and by reviewing the merits of the
I
Here,1 the panel addressed whether asylum claims based on changed circumstances raise “questions of law” giving rise to appellate jurisdiction under the REAL ID Act.
Prior to the passage of the Real ID Act,
The statutory text mаkes clear that the decision to consider an untimely application for asylum based on changed circumstances is solely a discretionary one,2 and is not reviewable as a “mixed question of law and fact.” The relevant statute states that an untimely “application for asylum of an alien may be considеred ... 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....”
Both the word “may” and the phrase “to the satisfaction of” imply that the decision is permissive only, thus creating an opportunity to request relief but not a judicially enforceable right to obtain it. See Vasile v. Gonzales, 417 F.3d 766, 768 (7th Cir. 2005) (interpreting
II
The plain text has led all of our sister circuits that have considered the issue to conclude that a changed circumstances determination is one of discretion. See Vasile, 417 F.3d at 768-69 (“Perhaps Vasile would like to shoehorn his [changed circumstances] claim into the ‘question of law’ category, but it simply does not fit there.... [T]he decision to extend the deadline for filing an asylum application is a discretionary onе.“); see also Zhu v. Gonzales, 493 F.3d 588, 596 n. 31 (5th Cir.2007) (expressly disagreeing with Ramadan II and observing that a federal appellate court “do[es] not have jurisdiction to review timeliness determinations that are based on an assessment of the facts and circumstances of a particular case“); Xiao Ji Chen v. U.S. Dep‘t of Justice, 471 F.3d 315, 332 (2d Cir.2006) (“This petitioner‘s challenge [based on changed circumstances] is merely an objection to the IJ‘s factual findings and balancing of factors in which discretion was exercised.“); Ferry v. Gonzales, 457 F.3d 1117, 1130 (10th Cir.2006) (“Ferry‘s argument that his pending adjustment of status application qualified as either a changed or extraordinary circumstance to excuse his untimely asylum application is a challenge to an exercise of discretion that remains outside our scope of review.“); Sukwanputra v. Gonzales, 434 F.3d 627, 635 (3d Cir.2006) (“Petitioners’ claim that she met her burden of demonstrating changed circumstances materially affecting asylum eligibility or extraordinary circumstances relating to the delay challenges ... [an] exercise of discretion.“); Ignatova v. Gonzales, 430 F.3d 1209, 1214 (8th Cir. 2005) (“Under the statutory framework ... whether ... [changed] cirсumstances exist is a discretionary judgment of the Attorney General.“); Chacon-Botero v. U.S. Attorney Gen., 427 F.3d 954, 957 (11th Cir.2005) (“The timeliness of an asylum application is not a constitutional claim or question of law covered by the Real ID Act‘s changes.“).
Yet the panel in Ramadan II insisted on reading the statute differently: “[W]e hold that the ‘changed circumstances’ question presented by Ramadan‘s petition is а question of the application of a statutory standard to undisputed facts, over which we have jurisdiction.” 479 F.3d at 650 (emphasis added). Thus, “the application of the one-year bar,” id., requires the disposition of a mixed question of law and fact—not simply an exercise of discretion based on factual determinations. This anomalous reading of the statute permitted the panel to avoid the fact that “Section 106 [of the Real ID Act] does not restore jurisdiction over discretionary determinations.” Id. at 654; see Trujillo v. Gonzales, Nos. 04-71733, 05-75857, 2007 WL 1725707, at *1 (9th Cir. June 13, 2007) (citing Ramadan II, 479 F.3d at 654, for this very proposition).
The panel acknowledged that the plain text of the Real ID Act does not remove the jurisdictional bar, but proceedеd to engage in interpretive gymnastics based upon a manufactured constitutional conflict. Reading a decision to consider relief based on changed circumstances to be a mixed question of law, the panel noted 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.” Ramadan II, 479 F.3d at 652 (citing INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001)). The panel held that a constitutional conflict could be avoided only by reading the term “questions of law” in the Real ID Act to include claims of changed circumstance under
But the evident way to avoid a constitutional conflict is to read the plain text, which makes clear that what is being challenged is solely the discretionary weighing of evidence by the IJ. Indeed, all other circuits to consider the issuе have concluded that the federal courts of appeals lack jurisdiction over these questions—even after passage of the REAL ID Act. See Sukwanputra, 434 F.3d at 635 (“We therefore agree with our sister courts that, despite the changes of the REAL ID Act,
Furthermore, the panel‘s interpretation of “to the satisfaction of” as simply identifying “who is to make the decision,” rather than creating discretion, treats this phrase as mere surplusage. Ramadan II, 479 F.3d at 655. Running afoul of the “cardinal principle of statutory construction,” Williams v. Taylor, 529 U.S. 362, 404, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), that it is “our duty ‘to give effect, if possible, to every clause and word of a statute,‘” United States v. Menasche, 348 U.S. 528, 538-39, 75 S.Ct. 513, 99 L.Ed. 615 (1955) (quoting Montclair v. Ramsdell, 107 U.S. 147, 152, 2 S.Ct. 391, 27 L.Ed. 431 (1883)), the panel‘s construction reads the words “to the satisfaction of” into thin air.
The panel attempts to support its singular result by citing the Second Circuit‘s decision in Chen, 471 F.3d 315 (dismissing a petition for review of the denial of asylum for lack of jurisdiction). The Chen court suggested in dicta that the phrase “questions of law” in the REAL ID Act may need to be read to include more than just questions of statutory interpretation, in order to avoid a Suspension Clause issue. But the court expressly declined to decide the matter:
In deciding this case, we need not determine the precise outer limits of the term
“questions of law” under the REAL ID Act, nor need we define the full extent of “those issues that were historically reviewable on habeas,” or what the Suspension Clause itself requires on direct, non-habeas review of a removal order. Rather, it is enough for us to hold simply that, although thе REAL ID Act restores our jurisdiction to review “constitutional claims or questions of law,” we remain deprived of jurisdiction to review decisions under the INA when the petition for review essentially disputes the correctness of an IJ‘s fact-finding or the wisdom of his exercise of discretion and raises neither a constitutional claim nor a question of law.
Id. at 328-29 (citations omitted).
Even a brief perusal of Chen makes clear that its holding does not support the panel‘s decision in Ramadan II. The Second Circuit specifically referred to “the IJ‘s discretionary and factual determination, with respect to petitioner‘s asylum claim, that petitioner failed to establish either changed or extraordinary circumstances under
In an effort to come within the restored jurisdiction for constitutional claims and questions of law, petitioner asserts that the IJ “fail[ed] to apply the law,” and argues that a claim of failure to apply the law raises a question of law, if not also a constitutional claim of violation of due process. A petitioner cannot overcome the lack of jurisdiction to review by invocation of such rhetoric. ... Accordingly, we conclude that, on this record, petitioner‘s mere assertion that the IJ and the BIA “fail[ed] 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.
In addition to misinterpreting the Second Circuit‘s decision in Chen, the panel attempts to enlist legislative history to explain away the statutory text. The lack of significance we should attach to such histоry is illustrated by the discordant uses of legislative history presented in the panel‘s first and second opinions. In the now-withdrawn opinion, Ramadan I, the panel wrote:
Should there be any doubt about the meaning of the term “questions of law” in the REAL ID Act, the legislative history makes it abundantly clear this term refers to a narrow category of issues regarding statutory construction. Fоr example, the Conference Committee Report states “[T]he purpose of[§ 106] is to permit judicial review over those issues that were historically reviewable on habeas—constitutional and statutory-construction questions, not discretionary or factual questions.” Conference Committee Statement, 151 Cong. Rec. H2813-01, H2873, 2005 WL 1025891 (May 3, 2005) (emphasis added).
Ramadan I, 427 F.3d at 1222. Yet in its revised opinion, herein Ramadan II, the panel stated:
Because the Conference Report indicates congressional 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 un-
der St. Cyr, the legislative history indicates that Congrеss intended to grant review over such questions.... [T]he 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 elеments.”
Ramadan II, 479 F.3d at 653 (citation omitted). The panel‘s effort to draw support from legislative history fails.
III
The panel‘s decision creates a split between our circuit and all seven other circuits to consider the issue, which, one by one, have rejected the argument that changed circumstances claims under
For the foregoing reasons, I respectfully dissent from our unfortunatе decision not to rehear this case en banc.
In re EL TORO MATERIALS COMPANY, INC., Debtor, Saddleback Valley Community Church, Appellant v. El Toro Materials Company, Inc., Appellee.
No. 05-56164.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted June 7, 2007. Filed Oct. 1, 2007.
Robert C. Braun, Penelope Parmes and Roger F. Friedman, Rutan & Tucker, LLP, Costa Mesa, CA, for the appellant.
Ronald K. Van Wert, Robert K. Van Wert P.C., Costa Mesa, CA, and William