Alberto R. Gonzales, United States Attorney General v. Cai Di Chen

1 The BIA also affirmed the IJ’s denial of Chen’s request for withholding of removal and
relief under Article III of the Convention Against Torture (“CAT”). However, Chen has only
raised the denial of asylum in his petition for review. Therefore, we need not address the BIA’s
1
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No.: 05-4010
ALBERTO R. GONZALES, UNITED STATES
ATTORNEY GENERAL,
Respondent
v.
CAI DI CHEN,
Petitioner
On Petition for Review of a Decision of the Board of Immigration Appeals
U.S. Department of Justice
Executive Office for Immigration Review
(BIA No.: A95-874-285)
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 3, 2006
Before: McKEE, AMBRO, and NYGAARD, Circuit Judges
(Filed: October 26, 2006)
OPINION
McKEE, Circuit Judge
Cai D. Chen asks us to review the decision of the Board of Immigration Appeals
affirming the Immigration Judge’s dismissal of Chen’s application for asylum because it
was untimely. 1 For the reasons that follow, we will dismiss the petition. 2

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other rulings.
2 Since we are writing primarily for the parties, we need not set forth the full factual and
procedural background on this appeal.
2
I.
Our review is limited to final orders of the BIA. Abdulai v. Ashcroft, 239 F.3d 542
(3d Cir. 2001). However, “[w]hen the BIA defers to an IJ, [we] must . . . review the IJ’s
decision.” Id. at 549 n.2. Here, the BIA simply adopted the decision of the IJ on the
issue of the timeliness of Chen’s asylum application. Accordingly, it is the IJ’s decision
that is before us.
Chen admits that he has the burden of establishing by clear and convincing
evidence that his application for asylum “ha[d] been filed within one year after the date of
[his] arrival in the United States.” 8 U.S.C. §1158(a)(2)(B) (2005). The IJ concluded that
Chen failed to meet this burden because he could not establish the date of his arrival with
any precision, he could not chronicle events that would establish when he arrived, and he
offered no documentary evidence to pinpoint the date of his arrival.
Chen acknowledges, as he must, that 8 U.S.C. §1158(a)(3) strips us of jurisdiction
to review the ruling that his asylum application was untimely. See Tarrawally v.
Ashcroft, 338 F.3d 180, 185 (3d Cir. 2003) (recognizing that §1158(a)(3) divests courts of
appeals jurisdiction to review whether an application for asylum was filed within the one-
year deadline). Nonetheless, Chen argues that the REAL ID Act of 2005 (the “REAL ID
Act”), Pub. L. No. 109-13, 119 Stat. 302 (2005), overrides the jurisdiction-stripping effect

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of §1158(a)(3), and permits us to review the IJ’s determination that his asylum
application was untimely.
Chen directs us to the section of the REAL ID Act that states:
Nothing in subparagraph (B) or ©), or 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.
8 U.S.C. § 1252(a)(2)(D) (2005). Chen asserts that the IJ’s conclusion that his asylum
application was untimely raises three questions of law that are reviewable pursuant to this
provision of the REAL ID Act. First, Chen posits that the IJ committed legal error
because he did not provide reasons to support his rejection of Chen’s testimony. Second,
he contends that the IJ applied an erroneous standard in assessing the evidence. Third,
Chen argues that the IJ committed legal error in failing to consider a letter from Chen’s
wife, which was offered to establish the date of Chen’s arrival.
Chen’s attempt to ride the REAL ID Act around the jurisdictional limitations on
our review of an IJ’s asylum ruling is foreclosed by Sukwanputra v. Gonzales, 434 F.3d
627 (3d Cir. 2006). There, we held that “despite the changes to the REAL ID Act, factual
or discretionary determinations . . . fall outside the jurisdiction of the court of appeals
entertaining a petition for review.” Id. at 634.
Although Chen attempts to claim that the IJ’s ruling was an error of law, he is
clearly attempting to challenge the IJ’s factual conclusions. Accordingly, we must

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dismiss Chen’s petition for review for lack of jurisdiction.

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