United States v. 2007-09-27 | 03-74351 | RAMADAN VKEISLER | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 NEAMA EL SAYED RAMADAN;
GASSER HISHAM EL GENDY, No. 03-74351
Petitioners, Agency Nos.
v. A79-561-874  A79-561-875PETER D. KEISLER,* Acting
Attorney General, ORDER
Respondent. 
Filed September 28, 2007
Before: Harry Pregerson, Michael Daly Hawkins, and
Sidney R. Thomas, Circuit Judges.
Order;
Dissent by Judge O’Scannlain
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 consider-
ation. Fed. R. App. P. 35.
*Peter D. Keisler is substituted for his predecessor, Alberto R. Gon-
zales, as Acting Attorney General of the United States, pursuant to Fed.
R. App. P. 43(c)(2).
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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 banc:
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 jurisdic-
tion over a swath of immigration cases hitherto beyond our
purview. Were such jurisdiction in fact given to us by Con-
gress, we would be obligated to accept the task. But Congress
has expressly withdrawn our power to review such discretion-
ary determinations, and by reviewing the merits of the IJ’s
ruling, the panel has transgressed the clear limits of our con-
stitutional jurisdiction. For this reason, and because the
panel’s opinion conflicts with the decisions of the seven other
circuits that have considered this issue, I must dissent from
our order declining to rehear this very significant case en
banc.
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.
1The panel issued an earlier opinion dismissing Ramadan’s appeal of
the IJ’s denial of Ramadan’s application for asylum based on changed cir-
cumstances, because such matters “do[ ] not present any ‘questions of
law.’ ” Ramadan v. Gonzales, 427 F.3d 1218, 1222 (9th Cir. 2005) (Rama-
dan I), withdrawn by 479 F.3d 646 (9th Cir. 2007) (Ramadan II) (holding
that a changed circumstance determination falls within the term “questions
of law”).
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Prior to the passage of the Real ID Act, 8 U.S.C.
§ 1158(a)(3) precluded our review of any determina-
tion relating to the application of the one-year bar.
Section 106 of the Real ID Act of 2005 restores our
jurisdiction over “constitutional claims or questions
of law.” Our jurisdiction therefore turns on whether
the “changed circumstances” claim presents a “ques-
tion of law”: if it does, section 106 restores our juris-
diction, but if it does not, the § 1158(a)(3)
jurisdictional bar applies and we lack jurisdiction.
Ramadan v. Gonzales, 479 F.3d 646, 650 (2007) (Ramadan
II) (footnotes and citations omitted). Asserting that “this case
does not involve a[n unreviewable] challenge to the agency’s
exercise of discretion,” id. at 654, the panel held that “Rama-
dan’s challenge to the IJ’s determination that Ramadan failed
to show changed circumstances is a reviewable mixed ques-
tion of law and fact,” id. at 656.
The statutory text makes clear that the decision to consider
an untimely application for asylum based on changed circum-
stances 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
considered . . . if the alien demonstrates to the satisfaction of
the Attorney General either the existence of changed circum-
2In contrast, whether an alien is “eligib[le] for discretionary relief” is a
question of law. INS v. St. Cyr, 533 U.S. 289, 304 (2001) (“In Heikkila v.
Barber, the Court observed that the then-existing statutory immigration
scheme ‘had the effect of precluding judicial intervention in deportation
cases except insofar as it was required by the Constitution,’-and that
scheme, as discussed below, did allow for review on habeas of questions
of law concerning an alien’s eligibility for discretionary relief.” (citation
omitted)). Because Ramadan only challenged the IJ’s determinations upon
discretionary review, she does not raise a legal question of eligibility. See
Ramadan II, 479 F.3d at 650 (“Ramadan argues that the IJ should have
considered her asylum application because changed circumstances materi-
ally affected her eligibility for relief.”).
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stances which materially affect the applicant’s eligibility for
asylum or extraordinary circumstances relating to the delay in
filing an application . . . .” 8 U.S.C. § 1158(a)(2)(D) (empha-
sis added).
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 8 U.S.C. § 1158(a)(2)(D) and
noting that “[p]ermissive language that refers to demonstrat-
ing something to the agency’s ‘satisfaction’ is inherently dis-
cretionary”). The text plainly vests a discretionary power to
consider an untimely application in the Attorney General and
in those acting with his authority. See Jay v. Boyd, 351 U.S.
345, 351 n.8 (1956) (allowing the Attorney General to dele-
gate authority in immigration matters). Although whether the
Attorney General has discretion is a legal question, the man-
ner in which his discretion is exercised is not. See United
States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 268
(1954) (“It is important to emphasize that we are not here
reviewing and reversing the manner in which discretion was
exercised. If such were the case we would be discussing the
evidence in the record supporting or undermining the alien’s
claim to discretionary relief.”).
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
one.”); see also Zhu v. Gonzales, No. 05-60891, 2007 WL
2083712, at *5 n.31 (5th Cir. July 23, 2007) (expressly dis-
agreeing with Ramadan II and observing that a federal appel-
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late 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 peti-
tioner’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. Gon-
zales, 457 F.3d 1117, 1130 (10th Cir. 2006) (“Ferry’s argu-
ment 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.”); Igna-
tova v. Gonzales, 430 F.3d 1209, 1214 (8th Cir. 2005)
(“Under the statutory framework . . . whether . . . [changed]
circumstances exist is a discretionary judgment of the Attor-
ney 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 a 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 determi-
nations. 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 determina-
tions.” Id. at 654; see Trujillo v. Gonzales, Nos. 04-71733, 05-
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75857, 2007 WL 1725707, at *1 (9th Cir. June 13, 2007) (cit-
ing 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 proceeded 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 (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 8 U.S.C.
§ 1158(a)(2)(D). “As indicated by our discussion of St. Cyr,
our conclusion is compelled by principles of constitutional
avoidance, precluding a constitutionally suspect alternative.”
Id. at 654.
But the evident way to avoid a constitutional conflict is to
read the plain text, which makes clear that what is being chal-
lenged is solely the discretionary weighing of evidence by the
IJ. Indeed, all other circuits to consider the issue have con-
cluded 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, 8
U.S.C. § 1158(a)(3) continues to divest the court of appeals of
jurisdiction to review a decision regarding whether an alien
established changed or extraordinary circumstance that would
excuse his untimely filing.”).3
3See also Ferry, 457 F.3d at 1130 (holding that the petitioner’s changed
circumstance argument constituted a “challenge to an exercise of discre-
tion that remains outside our scope of review”); Ignatova, 430 F.3d at
1214 (holding that “the decision whether . . . [changed] circumstances
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Furthermore, the panel’s interpretation of “to the satisfac-
tion of” as simply identifying “who is to make the decision,”
rather than creating discretion, treats this phrase as mere sur-
plusage. Ramadan II, 479 F.3d at 655. Running afoul of the
“cardinal principle of statutory construction,” Williams v.
Taylor, 529 U.S. 362, 404 (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 (1955)
(quoting Montclair v. Ramsdell, 107 U.S. 147, 152 (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 (dismiss-
ing 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 inter-
pretation, 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 pre-
cise 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 the REAL ID Act restores our jurisdiction
exist” is one of the “discretionary decisions [that] continue to be unre-
viewable by this court”); Chacon-Botero, 427 F.3d at 957 (“We agree with
the Seventh Circuit’s conclusion and hold we cannot review the IJ’s and
BIA’s denial of Chacon-Botero’s asylum claim, even considering the
changes in the Real ID Act.”); Vasile, 417 F.3d at 768 (“We conclude that
we cannot review the BIA’s denial of [Vasile’s] asylum claim, even in
light of the changes in the judicial review provisions contained in the
REAL ID Act of 2005.” (citation omitted)).
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to review “constitutional claims or questions of law,”
we remain deprived of jurisdiction to review deci-
sions 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 ques-
tion 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 Sec-
ond 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 8 U.S.C. § 1158(a)(2)(D).”
Id. at 323 (emphasis added). The court concluded that the
REAL ID Act lifted § 1158’s jurisdictional bar as to constitu-
tional questions and questions of law but did not allow courts
to review petitions based on discretion and fact. Id. at 329.
The Chen court expressly rejected the petitioner’s attempt to
transform a factual claim into a legal question by characteriz-
ing it as a challenge to “application of law”:
In an effort to come within the restored jurisdic-
tion 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 constitu-
tional 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 exer-
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cise of discretion into a constitutional claim or a
question of law.
Id. at 330-31.
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 history 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. For 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).
427 F.3d 1218, 1222 (9th Cir. 2005) (Ramadan I), withdrawn
by 479 F.3d 646 (Ramadan II). Yet in its revised opinion,
herein Ramadan II, the panel stated:
Because the Conference Report indicates congressio-
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. . . . [T]he Conference
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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.”
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 8 U.S.C. § 1158(a)(2)(D) are cognizable under
the REAL ID Act. But even more troubling than this split, the
panel’s decision defies the statutory text, unnecessarily
creates a constitutional conundrum, and places within our
jurisdiction an array of immigration appeals that Congress
does not permit us to review.
For the foregoing reasons, I respectfully dissent from our
unfortunate decision not to rehear this case en banc.
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