Lawrence E. Lupien v. Harold W. Clarke

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-1582
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Zita Marie Valerie Somakoko, also *
known as Zita Marie Valerie Camara, *
*
Petitioner, * Petition for Review of an
* Order of the Board of
v. * Immigration Appeals.
*
Alberto Gonzales, Attorney General *
of the United States of America, *
*
Respondent. *
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Submitted: December 17, 2004
Filed: March 1, 2005
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Before LOKEN, Chief Judge, MORRIS SHEPPARD ARNOLD and RILEY, Circuit
Judges.
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LOKEN, Chief Judge.
Zita Marie Valerie Somakoko is a thirty-one-year-old native and citizen of the
Central African Republic. She grew up in the Emperor’s palace in Bangui, Central
African Republic, because her parents were related to Emperor Jean-Bedel Bokassa
and to Dada Dacko, who overthrew Bokassa in 1979. The family scattered in 1984
when Dacko was removed from power. Ms. Somakoko and three siblings settled with
their father in Guinea, where she lived without incident for fourteen years, receiving
a high school and college education financed by the Catholic Church in Guinea. She

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entered the United States on a Guinean passport in July 1998, remained beyond her
January 1999 visa expiration date, and filed an application for asylum, withholding
of removal, and relief under the Convention Against Torture in October 1999.
The Immigration Judge (IJ) held a hearing on the application on five separate
days between June 2000 and September 2002. After one lengthy continuance, and
before the completion of Ms. Somakoko’s testimony, the government agreed that she
was entitled to withholding of removal to the Central African Republic. The hearing
then continued on the question whether Ms. Somakoko should be denied asylum,
either because her asylum application was not filed within one year of her arrival in
the United States, as 8 U.S.C. § 1158(a)(2)(B) requires, or because she firmly
resettled in Guinea prior to coming to this country, see 8 U.S.C. § 1158(b)(2)(A)(vi).
Following the hearing and the submission of post-hearing briefs and argument, the
IJ issued a written decision denying asylum on both grounds. The Board of
Immigration Appeals affirmed without opinion. Ms. Somakoko now petitions for
review of the agency’s final action. We deny her petition.
Ms. Somakoko concedes, as she must, that Congress has expressly precluded
judicial review of the Attorney General’s determination that an asylum application
is untimely. See 8 U.S.C. § 1158(a)(3); Ismailov v. Reno, 263 F.3d 851 (8th Cir.
2001). She argues, however, that we have jurisdiction to consider substantial
constitutional questions, including whether she was denied due process because of
a fundamentally unfair removal proceeding. Her hearing was fundamentally unfair,
Ms. Somakoko argues, because the IJ foreclosed testimony that would have entitled
her to a discretionary exception to the one-year filing requirement for “extraordinary
circumstances relating to the delay in filing an application within the period
specified.” 8 U.S.C. § 1158(a)(2)(D).
An alien has a right to procedural due process in removal proceedings. See
generally Al Khouri v. Ashcroft, 362 F.3d 461, 464-66 (8th Cir. 2004). However, the

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1“We have never held . . . that Congress may not, by explicit language, preclude
judicial review of constitutional claims.” McNary v. Haitian Refugee Center, Inc.,
498 U.S. 479, 504 (1991) (Rehnquist, C.J., dissenting).
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government argues with some force that procedural due process review of an agency
decision that we may not review on the merits “would undermine the statutory bar on
judicial review of timeliness rulings by the Attorney General.” 1 On the other hand,
courts are understandably reluctant to conclude that Congress intended to preclude
all judicial review of constitutional issues, including procedural due process claims.
Cf. I.N.S. v. St. Cyr, 533 U.S. 289 (2001). Indeed, one of our sister circuits recently
remanded, on procedural due process grounds, a BIA decision that upheld an
untimeliness determination without explaining the factual basis for the determination.
Gjyzi v. Ashcroft, 386 F.3d 710, 713-14 (6th Cir. 2004).
In this case, we need not decide the troubling question whether relief from an
untimeliness ruling may ever be granted on procedural due process grounds because
Ms. Somakoko has failed to demonstrate that her removal proceedings were
fundamentally unfair. At the hearing, Ms. Somakoko submitted documents and
testimony suggesting that she attempted to file an asylum application in June 1999,
within the one-year period. This was relevant evidence, because the governing
regulations define the statutory term “extraordinary circumstances” to include a
timely application that “was rejected by the Service as not properly filed, was
returned to the applicant for corrections, and was refiled within a reasonable period
thereafter.” 8 C.F.R. § 208.4(a)(5)(v). In this case, however, the agency had no
record of a June 1999 filing by Ms. Somakoko, and she could produce no evidence
that the agency had returned a timely application for corrections. Accordingly, the
IJ found that she did not file her asylum application until October 1999, some months
beyond the one-year deadline.

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In her post-hearing brief and argument, Ms. Somakoko argued, as she now does
on appeal, that the IJ had foreclosed other evidence of extraordinary circumstances
relating to the delay in filing, namely, “that she was pregnant when she arrived in this
country, that she gave birth to her son months later, and that she was forced to fend
for herself and her infant child after her sponsor abandoned her.” But the hearing
record reflects that such evidence was never offered, despite the fact that Ms.
Somakoko and her counsel had ample time to prepare for each session, and she
testified extensively both before and after the IJ announced that the application for
asylum appeared to be time-barred. Moreover, in the written decision issued after
submission of Ms. Somakoko’s post-hearing brief and argument, the IJ found that
“she has not shown that she qualifies for an exception to the 1-year deadline.” There
is no indication that the IJ failed to consider Ms. Somakoko’s post-hearing argument
regarding extraordinary circumstances, and we have no jurisdiction to review the
merits of the IJ’s determination.
On appeal, Ms. Somakoko also challenges the IJ’s decision that she firmly
resettled in Guinea before coming to the United States. See generally Rife v.
Ashcroft, 374 F.3d 606, 610-12 (8th Cir. 2004). However, counsel conceded at oral
argument that, given the facts and procedural history of this case, the resettlement
issue is relevant only to Ms. Somakoko’s time-barred application for asylum, not her
application for withholding of removal or relief under the Convention Against
Torture. Accordingly, we need not consider the resettlement issue. Finally, Ms.
Somakoko argues that the Attorney General exceeded his authority when he adopted
the affirmed-without-opinion regulation, 8 C.F.R. § 1003.1(e)(4), and that the BIA
improperly applied the regulation when it affirmed without opinion in this case. We
have repeatedly rejected these contentions as beyond our judicial review authority.
See Ngure v. Ashcroft, 367 F.3d 975, 988 (8th Cir. 2004).
For the foregoing reasons, we deny the petition for review.
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